Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Upper Tribunal case No.  CE/2025/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: E Mitchell, Judge of the Upper Tribunal

Decision:  The decision of the First-tier Tribunal (14^th November 2013, Chester, file reference SC 065/13/00992) involved the making of an error on a 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 First-tier Tribunal for rehearing. Directions for the rehearing are at the end of this decision.

Summary

1. A Tribunal made an error of law by failing to explain why an appellant’s evidence was unconvincing and vague. Simply to state that the evidence had these flaws was insufficient.

2. The First-tier Tribunal is obliged to record the duration of a hearing, by virtue of the Senior President of Tribunals’ Practice Statement on recording proceedings. In this case, a failure to do so resulted in a material error of law.

The background

3. The appellant in this case, whom I shall call Mrs B, appealed to the First-tier Tribunal (“the Tribunal”). She challenged the Secretary of State’s decision that she was not entitled to Employment & Support Allowance (ESA). The Secretary of State’s decision was based on his conclusion that Mrs B did not pass the ESA disability test (the Work Capability Assessment) and so did not have limited capability for work.

4. For the purposes of this decision, I need not set out any more of the background.

5. The Tribunal refused the appeal.  I granted Mrs B permission to appeal against the Tribunal’s decision. Having considered the grounds on which I granted permission, the Secretary of State supported the appeal. Both parties were content for the appeal to be remitted to the First-tier Tribunal for rehearing.

Why the First-tier Tribunal made an error of law

Why the Tribunal refused the appeal

6.  The Tribunal found that Mrs B was not a credible witness. Essentially, that is why her appeal was refused. In the evidential context of this appeal, once Mrs B’s evidence had been torpedoed, her case was sunk.

7. The Tribunal gave four reasons for finding that Mrs B lacked credibility:

(a)    her evidence was “unconvincing”;

(b)   her evidence was “vague”;

(c)    she accepted help as a “way of life” rather than because she needed it;

(d)   she sat at the hearing without any obvious discomfort although she had said in her claim form that “sitting for any duration of time causes me pain or discomfort”.

8. I shall address each of these in turn.

The finding that Mrs B’s evidence was unconvincing

9. I have not been able to fathom what the Tribunal meant by Mrs B’s evidence being “unconvincing”.

10. A finding that an appellant’s evidence did not convince does not arise from thin air. It is generated by some flaw in that evidence. But here there is no indication what that flaw was.

11. The Tribunal needed to provide some explanation for its finding that Mrs B’s evidence was unconvincing. For example, was it contradictory? If so how? Or was it out of line with medical expectation? If so how? Or was it evasive? If so what questions were evaded? Or was it a combination of these or some other factors?

12. A Tribunal is perfectly entitled to find that an appellant’s evidence was unconvincing but it needs to explain why rather than simply make a statement to that effect. A minute dissection of the flaws in the evidence is not required but some indication of the reasons, which will often take the form of examples, must be given.

The finding that Mrs B’s evidence was vague

13. The Tribunal did not explain why Mrs B’s evidence was vague.

14. If vagueness was apparent from the evidential record (and unlikely to be a function of disability) the lack of explanation might not matter. But, here, Mrs B’s account of her symptoms appears to have been relatively clear and consistent throughout. The Work Capability Assessment Healthcare Professional does not appear to have had difficulty taking precise details of Mrs B’s typical day, judging by the Professional’s report. And the Tribunal’s account of Mrs B’s oral evidence at the hearing, within its statement of reasons, does not suggest any lack of clarity.

15. The finding that Mrs B’s evidence was vague had to be reasoned. The evidence did not speak for itself on this point. The absence of reasons was an error of law. Again, a minute dissection of why evidence is considered vague is not required but some explanation must be given as to why evidence was considered to be suspiciously imprecise.

The finding that Mrs B accepted help that she did not need

16. The implication here was that the amount of help given to Mrs B was not indicative of her level of need. In principle, a Tribunal is entitled to make and rely on a finding like that. However, there must be a reasoned basis for it.

17. The reader of this Tribunal’s statement of reasons does not know whether the surplus help finding was made because the Tribunal (a) identified evidence that, at times, Mrs B could do things that at other times she could manage on her own, or (b) found that the help Mrs B said she needed was inconsistent with the level of disability usually associated with her medical conditions; or (c) relied on some other reason or combination of reasons. Again, inadequate reasons have been given.

The finding that Mrs B sat without discomfort during the hearing

18. The Tribunal’s finding that Mrs B sat without any obvious discomfort during the hearing might not, in more normal circumstances, be considered objectionable (although it is always good practice, and sometimes necessary to ensure fairness, to put this point to an appellant in case there is hidden pain and discomfort). However, in this case it was flawed because the Tribunal failed to record the duration of the hearing.

19. The Tribunal had an obligation to record the duration of the hearing: the start and finish times. This obligation is derived from the Senior President of Tribunals’ Practice Statement about the keeping of records of proceedings by the First-tier Tribunal.

20. Paragraph 2 of the Practice Statement requires a record to be made “of the proceedings”. Paragraph 3 provides that the record must be “sufficient to indicate any evidence taken and submissions made”. The duration of a hearing does not fall within paragraph 3. It does not amount to evidence that is “taken” nor, of course, is it a submission or application. But this does not matter.

21. Paragraph 3 of the Practice Statement does not set out exhaustively the content of the paragraph 2 obligation to keep a record. In fact, it refers to material which would have to be recorded in any event in order to discharge the paragraph 2 duty. Keeping a record of proceedings must inevitably include keeping a record of the evidence, submissions and applications. That is the basic stuff of proceedings. This point illuminates the function of paragraph 3 which is to ensure that the paragraph 2 duty is not construed as requiring a verbatim note of the evidence, submissions and applications. Paragraph 3 does not otherwise reduce the extent of the paragraph 2 obligation. A Tribunal of Social Security Commissioners arrived at a similar conclusion in R (DLA) 3/08 in relation to the similarly-worded duty to make a record of proceedings under the now revoked regulation 55 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991).

22. The basic obligation under paragraph 2 extends beyond keeping a note of evidence taken and submissions and applications made. Whatever needs to be recorded in order to convey what happened at the hearing, bearing in mind the purpose of keeping a record of proceedings, must be recorded. I do not attempt to give a full description of the purpose of keeping a record but there are two obvious significant purposes. The first is to ensure that the panel members, when they come to make their decision after the hearing, apply a more perfect recollection of the evidence, submissions and observed behaviour than if they relied on memory alone. The second is linked to the rule of law. Anything done or said, or any event, which may realistically have a bearing on the lawfulness of the proceedings must be recorded in sufficient detail. Details will be sufficient if they allow the onward appeal bodies to apply the legal standards governing decisions of the First-tier Tribunal. This purpose was in fact identified by a Tribunal of Social Security Commissioners in R (DLA) 3/08 albeit they were concerned with the express legislative requirement for a record of proceedings to be made under the 1999 Regulations.

23. A record needed to be made of the times at which Mrs B’s hearing started and finished. It was an essential part of the evidential context because it would have indicated the period for which Mrs B apparently sat without discomfort. But, even if sitting capacity is not a live issue on an appeal, the duration of a hearing must be recorded to demonstrate that the hearing did not begin before the notified time and was of sufficient length to allow the parties to put forward their cases. The present Tribunal therefore failed to comply with its obligations under the Practice Statement. And, in the circumstances of this case, that amounted to a material error of law.

24. If the Tribunal had recorded the duration of the hearing, its finding that Mrs B sat without apparent discomfort would have been read in that light. Given the non-technical way in which statements of reasons in this jurisdiction are to be read, it would have formed part of the Tribunal’s explanation for the weight given to this evidential feature. And so the absence of a record of hearing duration means the Tribunal has not explained why it gave particular weight to this point. That amounts to an error of law.

My decision

25. I find that the Tribunal made material errors of law. All of its reasons for concluding that Mrs B was not a credible witness were legally flawed as, therefore, was its credibility finding. I set aside its decision.

What happens next?

26. I have directed a complete rehearing of Mrs B’s appeal before a different panel of the First-tier Tribunal. It will consider her appeal afresh. The decision and findings of fact of the Tribunal whose decision I have set aside must not form any part of the reasoning of the new panel.

27. Mrs B is encouraged to attend the rehearing. My decision says nothing either way about the merits of this appeal. That is for the new panel of the First-tier Tribunal to judge.

Directions

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, I direct as follows:

(1)   There must be a complete rehearing before the First-tier Tribunal of the appellant’s appeal against the Secretary of State’s decision of 21^st August 2012. The membership of this Tribunal must not include anyone who was a member of the Tribunal whose decision I have set aside.

(2)   The appellant is reminded that the law prevents the First-tier Tribunal from taking into account circumstances not obtaining at 21^st August 2012, when the decision under appeal was taken.

(3)   If the appellant has any additional written evidence that she wishes to put before the First-tier Tribunal, it should be supplied to the First-tier Tribunal’s office within one month of the date on which this Decision is issued.

(Signed on the Original)

E Mitchell

Judge of the Upper Tribunal

5^th December 2014