THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
DECISION OF THE UPPER TRIBUNAL JUDGE
Before: A J GAMBLE
Attendances:
For the Appellant: (Claimant): The claimant was not present. He was represented by Mr Tom Muirhead.
For the Respondent: (Secretary of State): Mr Julius Komorowski, Advocate instructed by Ms Fiona Cavin, Solicitor, of the Office of the Solicitor to the Advocate General for Scotland.
The claimant’s appeal is allowed.
The decision of the Glasgow First-tier Tribunal of 16 May 2013 is set aside.
The case is remitted to the First-tier Tribunal (Social Entitlement Chamber) for redetermination by a freshly constituted tribunal in accordance with the directions in paragraph 29 of the Reasons. That tribunal should be different in composition both from that of 2 July 2012 and of 16 May 2013.
REASONS FOR DECISION
Background
3. The claimant appealed. The decision of 6 January 2012 was reconsidered on 13 February 2012 by another decision maker but not altered.
4. Accordingly the appeal proceeded. It was adjourned by a First-tier Tribunal on 19 April 2012. It proceeded to a hearing before another First-tier Tribunal on 2 July 2012 when they refused it and confirmed the decision maker’s decision of 6 January 2012.
5. The claimant then applied for permission to appeal to this tribunal. On 18 October 2012 I granted him permission. On 18 December 2012 Upper Tribunal Judge Agnew QC allowed the claimant’s appeal, set aside the tribunal decision of 2 July 2012 and remitted the case for a rehearing by a different tribunal. See his decision in CSE/573/2013, documents 160 – 161.
6. The claimant’s case was returned to the First-tier Tribunal in accordance with the directions in the decision of this tribunal. It was adjourned on 6 February 2013 by a First-tier Tribunal. It then proceeded to a hearing on 16 May 2013 when the tribunal once again confirmed the decision maker’s decision of 6 January 2012.
7. The claimant’s representative applied for permission to appeal to this tribunal against the First-tier Tribunal decision of 16 May 2013. District Tribunal Judge Kidd who had chaired the tribunal of 16 May 2013 refused permission to appeal on 30 October 2013. However on 3 March 2014 Upper Tribunal Judge Lunney granted the claimant permission to appeal.
8. On 14 May 2014 the claimant’s representative, Mr Muirhead, requested a hearing. On 19 May 2014 Upper Tribunal Judge Agnew QC directed one, documents 244 – 245, relating to the issues regarding human rights raised by Mr Muirhead in his written submissions. He also directed that intimation of these proceedings and of his direction for a hearing be made to the Equalities and Human Rights Commission (Scotland). That intimation was made. However the Equality and Human Rights Commission (Scotland) have not sought to enter these proceedings.
The oral hearing
9. The hearing took place before me on 4 December 2014 when representation was as narrated above. At the commencement of the hearing, Mr Komorowski adhered to the Secretary of State’s support of the appeal in paragraphs 21 – 23 of documents 219 – 220. That support, however, was limited to issues regarding the tribunal’s treatment of medical evidence and their approach to regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008. In his submissions in paragraphs 6 – 20 of documents 217 – 219 the Secretary of State resisted the claimant’s grounds of appeal based upon an alleged infringement of his human rights. Mr Komorowski also adhered to that position. Despite the Secretary of State’s limited support of the appeal, Mr Muirhead was eager to argue the human rights issues. Mr Komorowski indicated that he was prepared to do so also but in doing so would resist Mr Muirhead’s arguments. I consider given the terms of Upper Tribunal Judge Agnew’s QC’s directions of 19 May 2014, documents 244 – 245, that the claimant had at least a legitimate expectation that the hearing would deal with the human rights issues raised by Mr Muirhead in his written submissions. I proceeded on that basis. The claimant was not personally present at the hearing. However, Mr Muirhead was quite content that I should proceed in the claimant’s absence. I did so.
A preliminary issue
10. Early in the hearing Mr Muirhead moved that I should add the Secretary of State for Justice as a party under rule 9 of the Upper Tribunal Rules 2008 as his case based on human rights had important implications for the First-tier Tribunal (Social Entitlement Chamber) and this tribunal and the Secretary of State for Justice held ministerial responsibility for Her Majesty’s Courts and Tribunals Service who administer the above Tribunals. Mr Komorowski opposed Mr Muirhead’s motion. He submitted that an adjournment for the addition of the Secretary of State for Justice as a Second Respondent was unnecessary. He stated that the Secretary of State for Work and Pensions whom he represented was the contradictor to the claimant’s case on human rights issues as he had made clear in paragraphs 6 – 20 of his written submissions, referred to in paragraph 9 above. In practical terms he did not envisage that the Secretary of State for Justice would take a different position from that taken by the Secretary of State for Work and Pensions. Further, in McPherson v McPherson [1935] AC 177, a decision of the Judicial Committee of the Privy Council on appeal from the Appellate Division of the Supreme Court of Alberta, the question on whether a hearing in an undefended divorce in an Alberta court was in public or not was debated entirely between the parties to that litigation without the involvement of any representative of the authorities responsible for the administration of the courts in that province.
11. I found Mr Komorowski’s submissions telling. I rejected Mr Muirhead’s motion and decided not to adjourn to add the Secretary of State for Justice as a Second Respondent. I did not regard such a course as necessary as the representatives before me were well able and adequately prepared to debate the issues of human rights arising in these proceedings. Further, to have adjourned the oral hearing would have produced undue delay.
The human rights issues
12. In his skeleton argument as it was clarified and developed orally Mr Muirhead identified the following as the submissions on human rights issues which he wished to raise:
(i) The lack of any pre-publication of hearing lists before the First-tier Tribunal (Social Entitlement Chamber) and The Upper Tribunal (Administrative Appeals Chamber) means that the hearings conducted by those tribunals are not public hearings.
(ii) The locking by coded door locks of the tribunal rooms at Wellington House, a Glasgow Tribunal Centre, means that the First-tier Tribunal (Social Entitlement Chamber) hearings conducted there are not held in public.
(iii) In any event the tribunal rooms at Wellington House do not seem to be suitable for holding hearings in public.
(iv) The lack of a register of judgements of the First-tier Tribunal (Social Entitlement Chamber) which is open for public inspection represents a non-compliance with article 6 of the European Convention on Human Rights.
(v) The absence of a representative of the Secretary of State for Work and Pensions at a First-tier Tribunal (Social Entitlement Chamber) hearing means that the appeal cannot be determined in favour of the Secretary of State.
The course of the oral hearing
13. Mr Muirhead developed his argument in relation to the lack of any pre-publication of hearing lists both before the First-tier Tribunal and this tribunal. That argument is outlined in paragraph 23 below. Mr Komorowski responded. That response is narrated in paragraph 24 below.
14. As the legal debate proceeded Mr Muirhead increasingly concentrated on the lack of any pre-publicity of the hearing before me. He submitted that I should hold that hearing to be invalid and unlawful and that I should determine that issue first and separately from all other issues arising in these proceedings, whether relating to human rights, the merits or the facts and reasons stated by the tribunal of 16 May 2013. In support of me taking that course he referred me to paragraphs 34-35 of the judgement of Lord Nicholls of Birkenhead in Attorney General’s reference no. 2 of 2001 [2003] UKHL 68. However I pointed out to Mr Muirhead that Lord Nicholls’ statements, which I fully accept as a matter of general principle, only apply when it has already been decided that a trial, or in this case an oral hearing, actually constituted a breach of the Human Rights Act 1998. In this case that was one of the very matters at issue. Mr Muirhead’s argument was thus affected by circularity. It would only become my judicial duty under that Act to prevent the hearing from continuing once I was satisfied that its continuance was an infringement of the claimant’s convention rights.
15. Immediately before we recessed for lunch I indicated to Mr Muirhead and Mr Komorowski that I was giving thought to adjourning the hearing so that the Chamber President could give consideration to convening a 3 Judge Panel in regard to the question of the validity of hearings before this tribunal. However, when we resumed after lunch, I indicated to them that I was not minded to take that course and would instead continue with the hearing at least on the question of the lack of pre-publication of the lists of hearings both before this tribunal and before the First-tier Tribunal (Social Entitlement Chamber).
16. At that point I invited specific submissions from both representatives on whether I should give a prior and separate decision on the above question. Mr Muirhead strongly reiterated the points summarised in paragraph 14 above. On the other hand, Mr Komorowski submitted that as a matter of expediency I should reserve my opinion on the pre-publicity of hearings issue and decide it along with all the other issues in the case. I accepted Mr Komorowski’s submission. I informed parties orally that I would proceed to hear them on all other issues which they wished to raise and that I would then decide all the matters arising in these proceedings together. I indicated that I would not reach and promulgate a prior and separate decision on the issue of the pre-publication of listing.
Mr Muirhead’s withdrawal
17. In response to that announcement, Mr Muirhead indicated that he wished to withdraw from acting for the claimant. In answer to a question from me, he indicated that he did not have the claimant’s instructions to do so. Certainly he had no such instructions in writing. I informed him that in these circumstances and in the light of the claimant’s right to a fair hearing I would not consent to him withdrawing from acting for the claimant.
18. In response, Mr Muirhead changed his position and gave notice that he wished to withdraw part of his case under rule 17(1)(b) of the Upper Tribunal Rules 2008, reminding me that under rule 11(3) of those rules he was entitled as a representative to give such notice. The part of his case which he wished to withdraw was all the human rights issues narrated in paragraph 12 above except the first i.e. those laid out in sub-paragraphs (ii) – (v) of that paragraph. He wished to maintain his case in respect of sub-paragraph (i) of that paragraph and in respect to any issue relating to the merits or to the tribunal of 16 May 2013’s facts and reasons. Under rule 17(2) of the above rules I consented to the above withdrawal. Mr Komorowski had no objection to me doing so. However he emphasised that if the claimant applied to this tribunal for the part of his case which had been withdrawn to be reinstated then the Secretary of State would reserve the right to object to reinstatement being granted. The claimant is put on notice that that is the Secretary of State’s position.
19. Accordingly the remainder of this decision does not deal with the matters included in the part of the claimant’s case in respect of which I have consented to withdrawal.
Pre-publication of hearing before the First-tier Tribunal (Social Entitlement Chamber) and the Upper Tribunal (Administrative Appeals Chamber)
20. It was common ground between the parties that hearings both before the First-tier Tribunal (Social Entitlement Chamber) and this tribunal must be held in public. That requirement rests on a threefold basis. Firstly, it is explicitly laid down in rule 30(1) of the First-tier Tribunal (Social Entitlement Chamber) Rules 2008 and rule 37(1) of the Upper Tribunal Rules 2008. Secondly, it arises from a general principle of common law enunciated in e.g. Scott v Scott [1913] AC 417 and McPherson v McPherson [1936] AC 177 and, much more recently, in the Scottish decision of the Supreme Court in A v B.B.C. (Scotland) [2014] UKSC 25. Thirdly, article 6 (1) of the European Convention on Human Rights guarantees a public hearing in any case relating to the determination of civil rights and obligations. It was also common ground that although there are exceptions to the public hearing requirement under the Tribunal Procedural Rules, at common law and under article 6(1) none of them were applicable to the hearing before the First-tier Tribunal of 16 May 2013 nor to the hearing before me.
21. It was also common ground that the situation in regard to the pre-publication of listed cases before the First-tier Tribunal (Social Entitlement Chamber) in Wellington House in Glasgow was accurately laid out as follows in the third paragraph of document 248 on behalf of Her Majesty’s Courts and Tribunals Service:
“Lists of the appeals scheduled for the day are located at the reception desk where the G4S Guard is based. These are primarily for his/her use in order that there is a record of known attendees for the day (tribunal panel members, appellants etc). There is therefore no board in Wellington House on which the list of cases to be heard on any given day is displayed.”
Nor is such publicity given in advance on the internet, in contrast, with the case with the Court of Session and the Sheriff Court.
22. The situation in George House, Edinburgh where the hearing before me took place is almost exactly the same as that described in paragraph 21 above regarding Wellington House. There is no public notice board announcing cases which have listed for hearing on display in the public foyer. If a member of the public presents himself at George House on a day when a hearing has been scheduled and asks to attend it the front house receptionist will (unless, exceptionally, the hearing is designated as being in private) direct him to the first floor. On the first floor an electronic notice board indicates on a day when hearings in public are taking place that an Upper Tribunal (Administrative Appeals Chamber) hearing is being held, at what time and in which room. No indication of the names of the parties is given nor is any indication given of the subject matter of the appeal. As with the First-tier Tribunal (Social Entitlement Chamber) no pre-publicity on the internet is given.
23. Mr Muirhead clearly presented his position as follows. A public hearing before a judicial body is a matter of the greatest importance. He supported that proposition by reference to the cases cited in paragraph 20 above. In particular, he drew my attention to paragraphs 23 – 26 of Lord Reed’s judgement in A. Pre-publication of the cases listed for hearing on any given day was necessary to give practical effect to the principle of open justice emphasised by Lord Reed. Consequently, he submitted, a hearing for which no pre-publicity of its being heard or of the parties to it had been given was for practical purposes not a public hearing. Thus to convene such a hearing was a breach of the relevant tribunal rules, the common law principle enunciated in the authorities referred to in paragraph 20 above and article 6(1). The hearing before the First-tier Tribunal on 16 May 2013 and the hearing before me were accordingly both vitiated given the circumstances laid out in paragraphs 21 and 22 respectively. Mr Muirhead candidly conceded that so far as he was aware there was no decision which explicitly supported his argument. Indeed he was not aware of any case which dealt with the precise point at issue. (Mr Komorowski cited no such case either). However he did rely heavily on paragraph 19 of the judgement of Lord Justice Henry in the Court of Appeal in Storer v British Gas [2000] 1 WLR 1237. That paragraph reads as follows:
“It is plain that the test as to whether a hearing is in public or in private cannot depend on whether in fact any member of the public was prevented from attending the hearing. Were that not the case, then it would be a simple stratagem not to list any case which the court administration wished to be heard in private.”
Mr Muirhead summarised his argument by stating that a public hearing means one where the attendance of the general public and representatives of the press or other media is possible. That cannot truly be said to be the case in respect of any hearing where no pre-publicity of its having been listed and/or of the parties to it and its general nature has been given.
24. Mr Komorowski countered the above argument as follows. There was no rule of law whether statutory or at common law requiring pre-publicity of listing before a hearing could be said to be in public. The pre-publicity afforded to the public by the civil courts in Scotland goes beyond what is mandatory under the common law rule requiring public hearings. The passage from Storer cited in paragraph 23 above is obiter. In that case there was a list of cases which were to be heard on public display. See paragraph 17 of Lord Justice Henry’s judgement. Storer related to the issue of a door locked with a push button lock on a room which had been used for an industrial tribunal hearing. The ratio deceindi of Storer related to whether a hearing held in such a room could be said to have been in public. It was enough, Mr Komorowski submitted, that a hearing takes place in a court or tribunal building known as such to the public and within normal business hours for such a hearing to be categorised as being in public. That was the minimum requirement. Everything turned on the particular circumstances of each case. As a matter of fact or degree prior publicity might in some cases be required but this was not one of them. The hearings under discussion were covered by the minimum requirement. They were convened in publicly recognised tribunal buildings within reasonable office hours. Finally, Mr Komorowski indicated that matters would have been different had a deliberate stratagem or device been used by Her Majesty’s Courts and Tribunals Service to avoid a public hearing. That he submitted was the true meaning of paragraph 19 of Lord Justice Henry’s Judgement in Storer. No such allegation had been made in this case. The lack of prior publicity of hearings before the First-tier Tribunal (Social Entitlement Chamber) and the Upper Tribunal (Administrative Appeals Chamber) was general. There had been no deliberate plan to thwart the attendance of the public and/or of the media at the hearings relating to the claimant.
25. I see the force of Mr Muirhead’s arguments. However, on balance, I prefer those of Mr Komorowski. The minimum requirement of a public hearing, in my view, is that it takes place within reasonable office hours and at a publicly recognised court or tribunal hearing centre. That is so even if no pre-publicity of listed cases is available unless that can be shown in any given case to be a stratagem to deprive a claimant of a public hearing. Such is not the case here. For these reasons, I consider that both the First-tier Tribunal hearing of 16 May 2013 and the hearing before me were public hearings for the purposes of the relevant tribunal procedure rules, the common law principles and article 6(1). Neither of those hearings was vitiated by a breach of the requirement of a public hearing from whatever source that requirement is derived.
26. I thus conclude that the tribunal’s decision is not affected by an error of law in respect of the issue of pre-publicity of the listing of the hearing before it. In that regard I confirm the tribunal’s decision. For the avoidance of doubt, I also hold that it follows from my reasoning in paragraph 25 above that no invalidity attached to the hearing before me.
27. For the sake of completeness, I should add that, even if I had been persuaded by Mr Muirhead’s argument on this aspect of the case, I would not have acceded to his submission that I should give a declarator under section 21 of the Crown Proceedings Act 1947 that the hearings before the First-tier Tribunal and before me were invalid. I do not have such a power in an appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007 which is the case here. In such a case, my powers of disposal are only those laid out in section 12 of that Act. I do not consider that section 25 of that Act affects that position at all. Section 25 clearly refers only to interlocutory and ancillary issues and not to the substantive remedies which I am entitled to grant. I fully accept Mr Komorowski’s submission to that effect. Matters may have been different had this case arisen under sections 20 – 21 of the above Act. However it did not. I reiterate that the present proceedings are an appeal under section 11.
The tribunal’s statement of facts and reasons
28. I now turn to paragraphs 21 – 23 of the written submissions of the Secretary of State on documents 219 – 220. Mr Komorowski adhered to these submissions at the commencement of the hearing as narrated in paragraph 9 above. Towards the conclusion of the hearing, he invited me, in remitting the case, to restrict the new tribunal which would rehear it to a consideration of the question of whether the claimant fulfilled regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008. Mr Muirhead resisted that submission. His position was that the case should be remitted for a rehearing at large. I agree. I hold that the tribunal erred in law in the manner described in the passages from the Secretary of State’s written submissions to which I have just referred. I exercise my discretion in the claimant’s favour and set the decision of the tribunal aside on the basis of those errors of law. It is inappropriate for me to remake it. Accordingly I remit the case for a redetermination at large in accordance with the directions in paragraph 29 below.
Directions to the new tribunal
29. My directions for the rehearing are as follows:
(a) The task of the new tribunal will be to determine afresh and at large whether the claimant satisfied the limited capability for work assessment or should be treated as having satisfied that assessment.
(b) In doing so they should recall that the legal onus rests on the Secretary of State as the decision under appeal is a supersession.
(c) They should restrict their consideration to the circumstances which pertained on 6 January 2012, ignoring any subsequent improvement or deterioration in the claimant’s condition. Evidence postdating that decision should be considered provided its content relates to those circumstances.
(d) The new tribunal should carry out their task weighing and evaluating all available evidence, including in particular the written medical and other expert evidence.
(e) In doing so they are entitled to restrict their consideration to those activities and descriptors of the limited capability for work assessment which are relied upon by the claimant’s representative. If however other such activities or descriptors appear to them to be relevant from the whole state of the evidence then they should also determine the applicability of such activities or descriptors to the claimant.
(f) In the event that the new tribunal do not consider that the claimant scores a sufficient pointage under the above assessment to satisfy it they should go on to determine whether, in the alternative, he satisfies regulation 29(2)(b) of the above regulations.
Conclusion
30. The claimant’s appeal is allowed to the degree and for the reasons stated above. He should draw no inference as to his eventual success on the merits. Those are for determination by the new tribunal rehearing his case and applying the directions given in paragraph 29 above.
(Signed)
A J GAMBLE
Judge of the Upper Tribunal
Date:16 December 2014