Upper Tribunal (Administrative Appeals Chamber)

                                       DECISION OF THE UPPER TRIBUNAL

                                    ADMINISTRATIVE APPEALS CHAMBER

The claimant's appeal to the Upper Tribunal is allowed. The decision of the Middlesbrough First-tier Tribunal dated 20 February 2014 involved errors on points of law and is set aside. The case is remitted to a tribunal within the Social Entitlement Chamber of the First-tier Tribunal for reconsideration in accordance with the directions given in paragraphs 16 to 18 below and any further case management directions given by a salaried judge of the First-tier Tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(i)).

                                                   REASONS FOR DECISION

1.         The tribunal was concerned with the decision made on 13 December 2011 superseding the decision awarding the claimant employment and support allowance (ESA) from and including 22 June 2010 following receipt of a report from a healthcare professional (Dr Mohd Mohamed: report dated 22 November 2011). The superseding decision was that the claimant was not entitled to ESA from and including 13 December 2011 because he did not have limited capability for work. The doctor accepted that the claimant had longstanding problems with abnormalities of the spine and with recurrent renal calculus (kidney stones) as well as suffering from anxiety and depression, but the assessment on the basis of his report of 6 March 2013 gave the claimant no points. The claimant’s appeal was first disallowed by a tribunal on 30 October 2012, but that decision was set aside by Upper Tribunal Judge Parker on 7 November 2013 (file number CE/779/2013) on the ground that there had been a breach of the principles of natural justice because the ESA appeal had been heard concurrently with a disability living allowance (DLA) appeal, contrary to the ruling of the Upper Tribunal in MB v Secretary of State for Work and Pensions (ESA and DLA) [2013] UKUT 111 (AAC), now reported as [2014] AACR 1.  She remitted the cases for rehearing before separate tribunals, with directions that I shall discuss later. The decision of the tribunal of 20 February 2014 after the ESA rehearing, attended by the claimant and his mother, with his representative, Mrs Jagra of Stockton Welfare Rights, was to disallow the appeal, despite awarding six points under each of two mental, cognitive and intellectual function activities (unable to get to a specified unfamiliar place without being accompanied by another person and engagement in social contact with someone unfamiliar not possible for the majority of the time due to difficulty relating to others or significant distress).

2.         This is the second time that this case has reached the Upper Tribunal on appeal, with over three years having elapsed since the date of the decision under appeal. The representative of the Secretary of State in the submission dated 14 January 2015 agrees that the tribunal of 20 February 2014 went wrong in law and that there has to be yet another rehearing before a new First-tier Tribunal. I shall therefore make the present decision as brief as possible, avoiding any detailed discussion of the factual background.

3.         It is plain that the tribunal of 20 February 2014 erred in law by failing to deal at all in its statement of reasons with the potential application of regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 (substantial risk to mental or physical health of anyone if claimant found not to have limited capability for work). The application of regulation 29 had been put in issue by Mrs Jagra. As noted by Judge Wright when giving permission to appeal to the Upper Tribunal, the nature of the descriptors that the tribunal accepted as applying plainly raised issues under regulation 29 that needed to be addressed. The tribunal’s decision notice had recorded that regulation 29 did not apply, but the statement of reasons did not even repeat that reference, let alone explain why it was considered that regulation 29 did not apply. The impression was given that the score of only 12 points was conclusive against the claimant. That was an error of law that on its own requires the setting aside of the tribunal’s decision.

4.         It is also my view that, leaving aside any arguments about the adequacy of the tribunal’s findings of fact, there was a further inadequacy of reasons in failing to tie conclusions of fact to specific conclusions on qualification or otherwise for particular descriptors under the activities that were in issue before the tribunal.

5.         That is enough to explain the result of this appeal to the Upper Tribunal, but it is necessary to consider at rather more length some of the issues raised by Judge Moss when considering the application for permission to appeal as a salaried judge of the First-tier Tribunal and giving directions on 16 May 2014 for comments from the parties. That is to avoid the possibility of the new tribunal in the present case, or other tribunals in other cases, being led astray and to explain some of the directions given below.

6.         After setting aside the decision of the tribunal of 30 October 2012 Judge Parker in CE/779/2013 included the following in her directions to the new tribunal to which she remitted the case:

“I agree with the recommendation on behalf of the Secretary of State that, on remitting the matter to two new separate tribunals:

`In accordance with Judge Williams’ decision in [PJ v Secretary of State for Work and Pensions (ESA) [2011] UKUT 224 (AAC)] the directions in each case be made that ‘Subject to any request by the parties or direction by the [new] tribunal, the record of proceedings and statement of reasons for the decision taken by the [tribunal] are to be excluded from the papers put to the new tribunal. This is because they are not limited to consideration of this appeal but include consideration by another tribunal of another appeal.’”

In giving directions for the rehearings on 6 December 2013 Judge Moss had directed that “each tribunal is to have all the evidence in relation to the other appeal”. He did not give any specific direction about the record of proceedings and statements of reasons of the tribunal of 30 October 2012. What happened so far as the papers that were put before the ESA tribunal of 20 February 2014 are concerned is that the papers for the DLA appeal, including the record of proceedings and statement of reasons, were simply added to the bundle. Nor were the ESA record of proceedings and statement of reasons removed.

7.         I deal first with Judge Moss’ suggestion in his directions dated 16 May 2014 that Judge Parker had not given a direction, merely made a recommendation. That is a misreading of her decision. The “recommendation” was in the Secretary of State’s written submission to the Upper Tribunal. Judge Williams had in PJ given a specific direction in the terms quoted. There can be no doubt that by saying that she agreed with the Secretary of State’s recommendation to give a direction in those terms, Judge Parker was herself giving a direction in those terms.

8.         Judge Moss then suggested that the Upper Tribunal had no power in law to give such directions, relying on paragraphs 81 to 84 of the judgment of Elias LJ in the Court of Appeal in Secretary of State for Work and Pensions v R (on the application of MM and DM) [2013] EWCA Civ 1565 [2014] 1 WLR 1716. What is said in those paragraphs can have no relevance whatsoever to the powers of the Upper Tribunal on an appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007, where section 12(2)(b) provides that, if the Upper Tribunal sets aside the decision of a First-tier Tribunal (which requires an error of law to have been identified), it must either (i) “remit the case to the First-tier Tribunal with directions for its reconsideration” or (ii) re-make the decision. By contrast, what was before the Court of Appeal in MM and DM was an application for judicial review, which had been transferred by the High Court to the Upper Tribunal, of the Secretary of State’s procedures for assessing capability for work or work-related activity in ESA. The grounds relied on were in brief that the procedures put mental health patients at a substantial disadvantage, so that there was a duty to make reasonable adjustments under the Equality Act 2010. The Upper Tribunal, having concluded that mental health patients were put at a substantial disadvantage, decided that there was a prima facie case that it was reasonable for the Secretary of State to make an adjustment to the process of seeking evidence in a form that was only put forward for the claimants during the hearing. In those circumstances the burden of showing that it was not reasonable to make that adjustment, thus avoiding a conclusion of discrimination contrary to the Act, fell on the Secretary of State. The Upper Tribunal took the view that it was required to find what the reasonable adjustment should be and order the Secretary of State to make it and that, before it made that determination, it should direct the Secretary of State to undertake an investigation/assessment of how the adjustment in issue could be implemented. Those were the directions that the Court of Appeal found inappropriate, but that was because it was held that the Upper Tribunal had been mistaken in thinking that its task was to determine what a reasonable adjustment would be or to supervise the process of evidence gathering. That would have involved the Upper Tribunal in determining policy issues, which would be constitutionally improper. Thus what was said by the Court of Appeal about the inappropriateness of the directions given by the Upper Tribunal was firmly anchored in the specifics of the Upper Tribunal’s powers in the particular judicial review proceedings relating to the intricacies of the Equality Act 2010, where the fundamental error was in the Upper Tribunal’s misapprehension about the remedy it could give. Nothing of what the Court of Appeal said has any bearing on the Upper Tribunal’s power and duty to give directions under section 12(2)(b)(i) of the 2007 Act.

9.         The duty to give directions under section 12(2)(b)(i) is not restricted by any other words in the 2007 Act itself. Section 12(3) provides that in acting under section 12(2)(b)(i) the Upper Tribunal “may also” (a) direct that the new tribunal be differently constituted and (b) give procedural directions in connection with the reconsideration. In my judgment that provision is in no way restrictive of the extent of the power and duty under section 12(2)(b)(i), but merely illustrative or confirmatory of what would no doubt have been covered if section 12(2)(b)(i) had stood alone. This is not the place for any discussion of what limits might be implied. In the present case, Judge Parker’s direction was calculated to enable the new tribunal to avoid making an error of law, by taking into account evidence “tainted” in the way mentioned by Judge Williams. That is four-square within the area of directions which it is proper, and indeed necessary, for the Upper Tribunal to give. Accordingly, the First-tier Tribunal (covering both as constituted by Judge Moss on 6 December 2013 and as constituted by the members of the tribunal of 20 February 2014) were required to comply with those directions. That obligation follows as a matter of necessary implication from the terms of section 12(2)(b)(i), whose words would have no practical application if the First-tier Tribunal were free to disregard directions properly given by the Upper Tribunal in remitting a case. It also follows from the practical application of the hierarchy of tribunals and the process of appeal to the Upper Tribunal set up by the 2007 Act, under which the purpose of requiring the giving of directions in such cases is to promote the desirable outcome of the new First-tier Tribunal coming to a decision that involves no error of law and which therefore can bring an end to the particular dispute without the need for further consideration by the Upper Tribunal.

10.       However, it does not necessarily follow from the requirement to comply with directions of the Upper Tribunal under section 12(2)(b)(i) of the 2007 Act that a failure to comply involves the new First-tier Tribunal’s decision in an error of law that justifies setting it aside. First, the terms of the particular direction need to be examined. Here, the direction given by Judge Parker was carefully made subject to a request from the parties or direction by the new First-tier Tribunal. Thus, if Judge Moss had thought on 6 December 2013 that the direction was too sweeping and that it would have been proper for the new tribunal to take account of evidence given to the tribunal of 30 October 2012 subject to a conscious application of caution because of the possible unlawful participation of the disability qualified member in the taking of evidence on the ESA appeal, he could have given a direction to that effect, countermanding the instruction to remove either the records of proceedings or the statement of reasons or both from the papers before the new tribunal. However, he did not do so. I have considered whether his direction that each new tribunal (for the DLA appeal and the ESA appeal) was to have all the evidence in relation to the other appeal should be treated as having impliedly altered the direction about the removal of papers, but have concluded that it cannot. The words were too general to have that specific effect. If an Upper Tribunal direction is to be countermanded or altered, that must in my view be done in a way that makes it clear that that effect was understood and intended.

11.       Thus, the tribunal of 20 February 2014 was faced with the situation that Judge Parker’s direction had not been countermanded or altered and had not been complied with. It appears then not to have taken account of that situation at all in proceeding with the hearing and making its decision. However, no objection was made by Mrs Jagra. It appears from the schedule of documents that a new bundle of papers was prepared by the First-tier Tribunal administration and was sent out to the parties. Mrs Jagra may not have noticed the non-exclusion of the records of proceedings and statements of reasons, because of course both she and the Secretary of State already had those documents as parties to the earlier proceedings. The point of the direction was to prevent the new tribunal from seeing those documents. Mrs Jagra has said that she was alerted during the hearing on 20 February 2014 because the tribunal judge was reading and making notes from the previous record of proceedings. However, there is no record of Mrs Jagra having raised any objection at the time and she has not said that she did so. In reply to the directions on the application for permission to appeal she said that the claimant was very upset and she was concentrating on trying to keep him calm, so that she did not realise the implications until she had returned to the office.

12.       Since I have already decided that the tribunal’s decision has to be set aside for other reasons, I do not need to decide whether I would have set aside the tribunal’s decision alone on the ground of failure to comply with Judge Parker’s direction or of a breach of the principles of natural justice entailed in that failure to comply. However, without wishing in any way to give a green (or even an amber) light to such failures to comply, I record that I would have been very reluctant to set the tribunal’s decision aside on that ground alone. Of course, the tribunal should have taken the situation into consideration in a conscious way and at least asked Mrs Jagra for her views (on the assumption that the Secretary of State, who did not have a representative at the hearing, would not have objected to the tribunal having seen the documents). But as noted in paragraph 10 above, I think that the record of proceedings and statement of reasons of the tribunal of 30 October 2012 could without unfairness have been looked at and taken into account by the tribunal of 20 February 2014 if subject to a conscious application of caution because of the potentially “tainted” nature of some of the evidence recorded. That tribunal itself could, in accordance with Judge Parker’s direction, have given a further direction to that effect, subject to giving all parties a fair opportunity to deal with that new situation. In all those circumstances, I would probably have regarded Mrs Jagra’s failure to object either in advance of or at the hearing as undermining the claimant’s entitlement to rely on any unfairness stemming simply from the failure to comply with Judge Parker’s direction.

13.       Despite all the above, I consider that I should repeat and endorse Judge Parker’s direction in the directions that I give in the present decision to a new tribunal, subject (as was her direction) to any request by the parties or direction by the First-tier Tribunal.

14.       Finally, in relation to the issues raised by Judge Moss in his directions of 16 May 2014 on the application for permission to appeal, he raised the potential relevance of the British Medical Association’s (BMA’s) view (as recorded in paragraph 68 of the Upper Tribunal’s decision in MM and DM: [2013] UKUT 259 (AAC)) that (adopting Judge Moss’ quotation):

“It is not, however, the GP’s role to provide any opinion on the patient's capability to work as part of [the ESA] process. It is vital that … GPs are not asked to provide opinion on their patient for the purposes of receiving [ESA]; doing so could damage the doctor-patient relationship.”

The Secretary of State’s representative initially (page 726) said that that view was agreed, but without suggesting how it was relevant to the present case, where the claimant’s GP had provided a report on the claimant’s disabling conditions and difficulties (without being asked for or expressing an opinion on his capability for work). In the submission dated 14 January 2015 the Secretary of State agreed with these comments of Judge Wright when giving permission to appeal (which I also agree with and endorse, subject to slight qualification below):

“A difficulty I have is why DTJ Moss considered [the BMA’s view] to be relevant given that the First-tier Tribunal had had regard to the GP’s report on pages 626-627 and had not found against it because of the BMA’s view. A further difficulty, and one [the claimant’s] representative picks up on on page 727, is why the BMA’s view on what a GP ought to do is relevant when a GP has in fact provided such a report. If the DTJ was suggesting that that went to weight then was he not then trespassing on the First-tier Tribunal’s function and/or seeking to bolster its decision by reasoning that was not its reasoning? In any event, why would an otherwise competent GP letter or report lack weight simply because it has been written contrary to the BMA’s view as to whether such reports ought to be written?”

15.       The one qualification that I would add to Judge Wright’s comments is that it seems to me that Judge Moss overstated the extent of the BMA’s objections, which Judge Wright has then adopted himself. When one looks at paragraph 68 of the Upper Tribunal decision in DM and MM in full (although it is itself quoting from another document) it can be seen that it was recorded that the BMA was distinguishing between two roles for a GP within the ESA system. One was “to provide a factual report based on information contained within the patient's medical record”. The other was to provide an opinion on a patient’s capability for work. It was the second role that the BMA was rejecting, not the first. If it is acceptable to the BMA for a GP to provide a factual report based on medical records for the Department for Work and Pensions using one of their questionnaires, I do not see how it can be objectionable for a GP to do something similar for a claimant, possibly using a questionnaire from a representative properly restricted as was the one in the present case. Thus in my judgment this is not a case of a GP having provided a report in circumstances where the BMA’s policy was against doing so (on which assumption I agree with Judge Wright’s comments), but a case where the GP’s provision of the report was not contrary to the BMA’s policy at all.

Conclusion and directions

16.       For the reasons given in paragraphs 3 and 4 above the decision of the tribunal of 20 February 2014 is set aside as involving errors on points of law. The claimant's appeal against the Secretary of State's decision of 13 December 2011 must be remitted to a First-tier Tribunal for reconsideration in accordance with the following directions. No-one who was a member of the tribunals of 30 October 2012 or 20 February 2014 is to be a member of the new tribunal that reconsiders the claimant's appeal. There must be a complete rehearing of the appeal on the evidence produced and submissions made to the new tribunal, which will not be bound in any way by any findings made or conclusions expressed by the tribunals of 30 October 2012 or 20 February 2014.

17.       I direct that, subject to any request on behalf of the Secretary of State or the claimant or to direction by the First-tier Tribunal, the record of proceedings and statement of reasons for the decision taken by the tribunal of 30 October 2012 are to be excluded from the papers put to the new tribunal. This is because they are not limited to consideration of this ESA appeal but include consideration by another tribunal of another appeal. I leave it to the salaried judge of the First-tier Tribunal who considers the arrangements for the rehearing to identify the pages involved and to take the necessary action to implement this direction or to give any amending direction. I draw the attention of that salaried judge and of the new tribunal which rehears the appeal to paragraphs 8 to 11 above discussing the binding nature of directions given by the Upper Tribunal under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

18.       I do not need to give any specific directions of law about the interpretation of the descriptors in operation at the relevant time or about the effect of regulation 29 of the ESA Regulations. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new tribunal. The decision on the facts in this case is still open.

                                                                                                    (Signed on original):  J Mesher

                                                                                                     Judge of the Upper Tribunal    

                                                                                                     Date:                11 March 2015