Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                         Appeal No. CE/1613/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge K Markus QC

The decision of the Upper Tribunal is to allow the appeal.  The decision of the First-tier Tribunal made on 9 December 2013 under number SC141/13/00519 was made in error of law.  Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions.

Directions

1. This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

2. The members of the First-tier Tribunal who reconsider the case should not be the same as those who made the decision which has been set aside.

3. The parties shall send to the relevant HMCTS office as soon as possible any further relevant written medical or other evidence, if there is any.  If they cannot send that evidence within one month 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.

4. The appellant must understand that the new tribunal will be looking at her health problems and how they affected her at the time that the decision under appeal was made, that is the 22 November 2012.  Any further evidence, to be relevant, should shed light on the position at that time.

5. The new panel 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 conclusion 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

Summary

1.    The Appellant’s appeal to the Upper Tribunal is allowed. The decision of the First-tier Tribunal is set aside and the case will be re-heard by a different First-tier Tribunal. 

2.    The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the appellant will succeed before the First-tier Tribunal on a rehearing of the appeal on its facts.  A new tribunal may reach the same or a different decision to that reached by the previous First-tier Tribunal.  It depends on the findings of fact which the new tribunal makes.

Background

3.    The appellant, Miss J, had been in receipt of Employment and Support Allowance (ESA) since March 2011.  She attended for medical assessment by a healthcare professional (HCP) on 17 July 2012.  The HCP concluded that she satisfied descriptor 16(c) in Schedule 2 of the Employment and Support Allowance Regulations 2008.  On 29 October 2012 the SSWP decided that Miss J scored 6 points under Schedule 2 and so did not have limited capability for work. The effect was that she was no longer entitled to ESA.  Following Miss J’s appeal, the decision was reconsidered but not changed.

4.    The bundle of documents provided to the First-tier Tribunal by the SSWP did not include the health questionnaire (ESA 50) which ESA claimants are asked to complete.  The SSWP stated in his supplementary submission for the tribunal (page 44) that a questionnaire had been sent to the appellant in March 2012 but not returned.  The First-tier tribunal hearing was listed to take place on 17 October 2013.

5.    Prior to the tribunal hearing Ms J’s representative sent written submissions as follows:

a)    The appellant’s representative had asked the tribunal service to list the hearing for an hour later so that he could attend but this had been refused. 

b)    There were discrepancies in the documents as to whether or not Ms G returned the questionnaire.

c)    The hearing was unfair and in breach of article 6 of the European Convention on Human Rights because of the delay since the medical assessment and because the DWP did not make a decision until 4 months after the medical assessment.

d)    The tribunal should conclude that the appellant has limited capability for work either under Schedule 2 or regulation 29 of the ESA Regulations.

6.    The First-tier Tribunal adjourned the hearing on 17 October 2013.  The appellant was not present and the tribunal felt it would be unfair to proceed.  The tribunal gave directions including:

“A presenting officer is to attend the next hearing, to present the department’s response to the recent submission by the Appellants representative.”

7.    The next hearing took place on 9 December 2013.  The appellant and her representative were present.  No presenting officer was present. The appellant’s representative raised issues about delay and the absence of an ESA 50.  However, the appellant and her representative agreed that the assessment of the HCP in July 2012 was accurate. The tribunal heard evidence from the appellant.  It does not appear from the record of proceedings, decision notice or statement of reasons that the appellant or her representative objected to the tribunal proceeding in the absence of the presenting officer. 

8.    The First-tier Tribunal refused the appeal.  It decided that the appellant scored no points under Schedule 2 and that regulation 29 did not apply. In the statement of reasons, the tribunal explained that it rejected the appellant’s submissions as to delay because it did not render a fair hearing impossible as the tribunal could rely on the findings of the HCP, which were not disputed, and the evidence of Miss J.  The tribunal noted that there was some doubt whether an ESA 50 had been submitted or lost by the DWP, but the tribunal did not think that the absence of the ESA 50 prejudiced the appellant because of the availability of the ESA85 and the oral evidence of the appellant.  The tribunal then proceeded to explain its findings of fact and its conclusions as to the appellant’s functional limitations and the application of regulation 29.

9.    The appellant sought permission to appeal on the following grounds: a) The tribunal failed to explain why it proceeded even though the presenting officer was not present;  b) The appellant had not had a fair hearing in the absence of the presenting officer; c) The tribunal gave inadequate reasons for rejecting the appellant’s submissions as to delay; d) It was not fair to expect the appellant to make comment about the medical assessment 17 months after it took place and taking into account her medical condition.

10. On 14 March 2014 another judge of the First-tier Tribunal granted permission to the appellant to appeal to the Upper Tribunal on the following grounds: a) Was it an error to proceed in the presenting officer’s absence? b) Did it have to power to do so in the light of the direction that a presenting officer attend? c) Was it an error to fail to explain why the tribunal proceeded in the absence of the presenting officer? d) as neither the appellant nor her representative objected to the absence of a presenting officer, was the tribunal correct to proceed and not mention the issue in its statement?

11. By written submissions dated 20 August 2014 the SSWP supports the appeal in respect of the issues identified in the grant of permission, but not the other grounds of appeal advanced by the appellant.  The SSWP invites the Upper Tribunal to set aside the First-tier Tribunal’s decision and to remit the appeal for rehearing by a different tribunal.  The appellant has not added any further comments but consents to a decision without reasons. Neither party has requested an oral hearing and I consider that I can properly determine the issues in this appeal without one. 

Discussion and conclusions

a)         Absence of the presenting officer

12. There was a direction made on 17 October 2013 requiring attendance of a presenting officer. In a number of cases the Upper Tribunal has stressed the importance of complying with a direction for the attendance of a presenting officer.  They have emphasised that rule 2(4)(b) of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 requires parties to co-operate with the Tribunal generally which includes complying with directions.  If a party is unable to comply with a direction, then it should apply under rules 6(5) for the original direction to be amended, suspended or set aside.   Some of these authorities were referred to by Upper Tribunal Judge Wikeley in MT v SSWP (IS) [2010] UKUT 382 (AAC). Judge Wikeley observed that, where a party fails to comply with a direction, rule 7(2) enables the First-tier Tribunal to take such action as it considers just, including waiving the requirement, requiring the failure to be remedied, striking out a party’s case, or referring the matter to the Upper Tribunal.  Judge Wikeley said that a tribunal must consciously exercise that discretion and give some explanation as to why it has been exercised in the manner chosen.  In that case the tribunal decided to proceed, without explanation, even though a direction for attendance a presenting officer had not been complied with.  Judge Wikelely decided that the tribunal had erred in law in failing to exercise the discretion in rule 7(2) or alternatively failing to give adequate reasons for doing so.

13. I agree with Judge Wikeley’s analysis.  As the Tribunal of Commissioners said in R(IB) 2/04 at paragraph 94, there must be a conscious exercise of a statutory discretion of the tribunal, and (if a statement of reasons is requested) reasons should be given as to why it was exercised in the manner it was.  This was said in relation to a different discretion but the principle is of general application: see Stovin v Wise [2991] AC 923 at 950B.

14. In the present case the First-tier Tribunal was faced with a clear breach of the direction that the presenting officer should attend the hearing.  The tribunal had to decide whether and how to exercise any of its powers under rule 7(2). It may be that it could have decided to proceed in the absence of the presenting officer. Whatever it decided to do, the statement of reasons should have contained an adequate (which may well have been brief) explanation of its reasons for doing so.  What it was not permitted to do was simply to ignore the breach. 

15. I take into account that the appellant and her representative did not object to the tribunal proceeding in the absence of the presenting officer.  The lack of objection would almost certainly have been a relevant factor in the tribunal deciding how to exercise its discretion in rule 7(2) but it did not excuse its failure to do so.  Indeed, where the absence of the presenting officer is not raised by the appellant and the tribunal itself has not mentioned the issue, the question arises whether the tribunal had even realised that there was a direction for such attendance. 

16. It might be said that the absence of the presenting officer caused no prejudice to the appellant in this case.  Even if the presenting officer had been able to shed light on what had happened to the ESA50, that may not have made any difference in the light of the tribunal’s conclusions that it could proceed in its absence.  It is hard to imagine what the presenting officer could have said about delay that would have assisted the appellant.  But the tribunal making the directions thought the presenting officer could assist. And the role of the presenting officer may go beyond simply presenting the SSWP’s case or response to submissions of the appellant. In the Northern Ireland case of CSC3/07-08 at paragraphs 68-71 Mr Commissioner Mullan explained the importance of the presence of the presenting officer.  I acknowledge that it is not usual for a presenting officer to attend but, where a tribunal has directed attendance, the factors identified by Mr Commissioner Mullan emphasise the importance of the First-tier Tribunal properly considering how it should address the presenting officer’s absence and providing reasons for its decision.  Therefore I am not prepared to conclude that the error of law by the First-tier Tribunal was immaterial. 

b)        Incapacity questionnaire

17.  It is not known why there is no questionnaire available. The decision-maker referred to a questionnaire (page 42) but the SSWP subsequently asserted (page 44) that a questionnaire was sent to the appellant’s home address in March 2012 but that it was not returned and so the previous reference to a questionnaire was a mistake.  In the appellant’s submissions to the First-tier Tribunal she said that she could not remember whether she received or returned the questionnaire but pointed out that the DWP made no effort to follow it up. 

18. It may be that the presenting officer could have clarified the position.  But aside from the error of law identified above, I do find any error in the tribunal having determined the appeal in the absence of a questionnaire.  The tribunal explained that it was able to proceed fairly without the questionnaire because it had the benefit of the HCP report (and, as the tribunal noted in the previous paragraph, neither the appellant nor her representative took issue with the notes made by the HCP) and they had the benefit of the oral evidence of the Appellant.  The tribunal was entitled to proceed in those circumstances.

19. In his written submissions on this appeal the SSWP speculates that the decision-maker may have considered that no questionnaire was necessary pursuant to regulation 21(2) of the ESA Regulations, rather than to treat her as not having limited capability for work pursuant to regulation 22. This may be an issue about which a tribunal hearing the appeal afresh may wish to ask a presenting officer if one is present. 

c)         Delay

20. The relevant dates are as follows.  The decision was made on 29 October 2012 but not notified to the appellant until 21 January 2013.  The appellant appealed on 31 January, and the decision was reconsidered on 4 June 2013 (page 41-43) and not revised.  The decision was reconsidered again on 20 September 2013 following the appellant’s representative having raised the issue of whether there was an ESA 50 (page 44-46) but it was not revised.  The hearing originally scheduled to take place on 17 October 2013 was adjourned in the circumstances set out above.  I do not draw any adverse inferences about the appellant’s non-attendance at that hearing because, as the First-tier Tribunal noted (page 57), it may be that she was told not to come and, in any event, there was an explanation for her representative’s non-attendance on that day. The appeal was eventually heard and decided on 9 December 2013.

21. The tribunal stated in the Decision Notice:

“The Tribunal found that the delay was unfortunate but not unusual for the DWP. The tribunal found that it did not prevent it from making a fair and evidence based decision on the appeal, particularly in the light of the evidence from the HCP from July 2012, which both the Appellant and her representative accepted was accurate as to he medical circumstances in July 2012.”

22. In its statement of reasons, the tribunal said:

“In essence, the Appellant’s argument…was that there had been considerable delay which rendered it impossible to have a fair hearing of the Appeal. Reference was made to Article 6 of the Convention on Human Rights. The original decision to refuse benefit was made on 29^th October 2012 and was notified to the Appellant on 21^st January 2013….whilst any delay is regrettable, it was nit [sic] such in this case as to render a fair hearing impossible.  We had the findings of the HCP from 17^th July 2012.  Upon             questioning by the Tribunal, neither Mr McKendrick nor Miss [J] took any issue with the notes made by the HCP during the assessment. Of course, we also had the evidence of Miss [J] who would do her best to help the Tribunal with her circumstances at the time of the decision.  Of course, the Tribunal agreed to make some allowance in respect of the passage of time and the fading f [sic] recollection. However, it seemed to the Tribunal that this is, to some extent, an issue with each appeal.”

23. In this case there are two relevant requirements of article 6 of the European Convention on Human Rights, namely that a hearing be fair and that it take place within a reasonable time.  In the reasoning above the tribunal clearly addressed the former and I conclude that it did so properly.  However, the tribunal has not properly addressed the latter.  As Mr Commissioner Turnbull observed in R(IS)2/04, both issues need to be addressed.

24. I do not consider that the failure to address the question of whether the hearing took place within a reasonable time amounts to a material error of law in this case.  Time began to run from the date of the supersession decision: R(IS)2/04.  The total period of time from that decision to tribunal decision was 15 months.  

25. The relevant principles applicable to an assessment of whether delay is unreasonable are summarised by Upper Tribunal Judge Lane in HJ v SSWP [2009] UKUT 47 (AAC):

25.       Dyer[1] reviews the European Court of Human Rights case law extensively and sets out the principles on which unreasonable delay is to be assessed.  Where there is unreasonable delay, a breach is not dependent upon proof of prejudice or detriment arising from the delay - prejudice is presumed if the delay is unreasonable.  Prejudice suffered through delay may, of course, make the appellant’s position stronger, but a lack of prejudice does not change the character of a breach that has already arisen:  paragraphs 73, 78-79, per Lord Hope of Craighead; paragraph 50, per Lord Bingham of Cornhill.  Dyer also confirms that the manner in which administrative authorities deal with a dispute can be material to the issue of whether there has been unreasonable delay in providing a hearing. ..

26.       The principles in Dyer relating to delay, stated in paragraphs 52 – 55 therein, can be stated briefly: 

(i) Decide whether on the face of it, without more, whether the period of time elapsed gave real cause for concern.  The threshold to be reached before there can be said to be a breach of Article 6 is high (per Lord Bingham, paragraph 52) or relatively high (per Lord Hope, paragraph 78). 

(ii) If the period of time that had elapsed did not give real cause for concern on the face of it, then that was the end of the matter.

(iii) If the time elapsed did give real cause for concern, go on to consider all of the circumstances of the individual case, with particular attention to three main factors: 

a.         The complexity of the case,

b.         The conduct of the party claiming the breach, and

c.         The manner in which the administrative and judicial authorities have dealt with it.  It is up to the state to explain its delay satisfactorily. 

These criteria apply in both the criminal and civil contexts:  Konig v Germany 2 EHRR 170, paragraph 99.  “

26. The period in the present case does not give real cause for concern.  While there is no explanation for the delay in notifying the decision to the appellant, that was  relatively short.  Further delays are explained by the two reconsiderations which were properly undertaken.  The adjournment of the hearing in October arose from a proper concern by the tribunal to ensure that the appellant had a fair hearing.  My conclusion is not affected by the fact that the tribunal was presented with evidence (the HCP report) that predated the decision by an additional three months.  The HCP report is simply evidence relied upon by the SSWP and there was no suggestion that the appellant’s condition had changed significantly between the date of the medical assessment and the date of the decision.   There were no exceptional factors which render the total period unreasonable.  It is unfortunate that the appeal was not concluded earlier but the period is not unreasonable taking into account the relatively high threshold that must be reached.

Conclusion

27. I conclude that the First-tier Tribunal erred in law in one respect only, that is in failing to address the breach of the direction that a presenting officer should be present.  The decision of the First-tier Tribunal is set aside. I am not in a position to re-make the decision under appeal and so there will need to be a fresh hearing before a new tribunal.

28. I should make it clear that I am making no finding about nor expressing a view on whether the appellant is entitled to ESA and, if so, at what rate, on what basis or for how long.  These issues are all for the new tribunal to decide. 

29. The new tribunal will have to focus on the Appellant’s circumstances as they were at the time that the SSWP made the original decision which was in November 2012. That is because the new FTT must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (section 12(8)(b) of the Social Security Act 1998).  This means that, while the appellant may file evidence which was not before the FTT at the last hearing, it must be evidence which sheds light on the appellant’s position as it was in November 2012. 

30. I have not directed that a presenting officer attend the hearing before the new tribunal.  Despite my conclusions as to the FTT’s error in this case, I have not concluded that it is necessary for a presenting officer to attend.  This is a matter which the District Tribunal Judge should consider when the papers are placed before him or her.

Signed on the original                                           Kate Markus QC

On 7 October 2014                                                  Judge of the Upper Tribunal