Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CIS/3875/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Before: M R Hemingway: Judge of the Upper Tribunal

 

Decision:  The decision of the First-tier Tribunal sitting at Birmingham on 27

January 2014 under reference SC024/13/14153 involved an error of  

law and is set aside.

 

The appeal is remitted for determination at an oral hearing before a completely differently constituted tribunal.

 

This decision is made under section 12(1), 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

DIRECTIONS

 

Subject to any later directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

 

(1) The new hearing shall be an oral hearing. It shall take place before a completely differently constituted tribunal to that which considered the appeal on 27 January 2014.

 

(2) The claimant, appointee and representative are reminded that the new tribunal can only deal with the situation as it was down to 21 May 2013 (the date of the original decision of the Secretary of State under appeal) and cannot deal with any changes after that date.

 

(3) The respondent shall, for the purposes of clarity and within one month of the issuing of this decision, confirm the identity of the current appointee for the claimant and, if his appointee is no longer the person referred to as LMW in this decision, when it was that the position changed. It shall also be confirmed, within the same timeframe, whether there is currently an appointee for LMW and, if so, the identity of that appointee and the date of any such appointment.

 

(4) The respondent shall, within one month of the issuing of this decision, provide any further documents in his possession which are considered to be relevant to the case in accordance with rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008.

 

(5) If the parties have further written material, other than that already directed to be produced, upon which they wish to rely, then this should be sent to the relevant HMCTS office within one month of the issuing of this decision.

 

 

 

REASONS FOR DECISION

Summary of the decision of the Upper Tribunal.

 

1. This is the claimant’s appeal to the Upper Tribunal against the decision of the First-tier Tribunal (F-tT) dated 27 January 2014. My decision is that the F-tT’s decision involved an error of law. I allow the appeal to the Upper Tribunal and set aside the F-tT’s decision. The appeal against the Secretary of State’s decision dated 21 May 2013 will have to be reheard by a new tribunal.

 

The factual background

 

2. I have identified the various protagonists by the use of initials. JW (the claimant) is a single man who was born on 9 May 1975. He has been receiving income support since 1993.  He has also, at all material times, been in receipt of the higher rate of the mobility component and the highest rate of the care component of disability living allowance. Unfortunately, the papers before me do not reveal the basis upon which that award was made.  On 24 February 2009 he started to receive a severe disability premium as a part of his income support entitlement.  He is unable to read or write and has been described by an officer of the Department for Work and Pensions as being “in a vulnerable client group”.  JW has a sister, KW, who has, at all material times, been in receipt of the highest rate of the care component of disability living allowance.  Both JW and KW have been looked after by LMW who is their grandmother. LMW was born on 28 November 1926.  She has, at all material times, been in receipt of attendance allowance at the higher rate.  As at the time the original decision of the Secretary of State under appeal was made, LMW was the appointee for JW and, it appears, KW although it does seem that the position may have subsequently changed.  LMW has a daughter, JJ, and a son WW.  It appears that JJ has, at some point, become the appointee for LMW but I have not had sight of any documentation confirming this. WW has not been receiving disability living allowance in relation to any of the periods relevant to this appeal.

 

3. It is said that at all material times, JW and KW have resided with LMW in property rented by LMW from a local authority.  There does not, in fact, appear to be any dispute about that despite other information having been given to the respondent in the past (see below).  JJ has not been residing at the property and, again, that is not the matter of any dispute. The place of WW’s residence has, however, been an issue of relevance and considerable dispute.

 

4. The initial claim for the severe disability premium was initiated by the Department for Work and Pensions who contacted LMW to tell her JW might be so entitled. This led to LMW completing, on behalf of JW, a standard form known as form IS10. In completing that form LMW indicated that no-one was receiving invalid care allowance in respect of JW (not disputed) and that no-one lived with JW at all. Thereafter, an officer of the Department for Work and Pensions telephoned LMW and, according to what is a brief note of the content of that telephone conversation (but not a verbatim note) LMW said that she lived with JW but that no-one else resided at the premises. On that basis the Department for Work and Pensions decided to pay the severe disability premium.  Payment was made from 24 February 2009 and continued for some time thereafter.

 

5. On 22 March 2013 the respondent sent what is known as an “A2 Income Support Review form” to LMW for completion. That form related to the income support claim for JW.  It is not clear whether there was anything specific which had triggered the sending of the form but, in any event, LMW completed it on 26 March 2013 and returned it. It appears to have been received by the respondent on or just prior to 2 April 2013.  In completing that form LMW indicated that she, JW and KW were all residing together at the same rented premises. She did not indicate the presence of anyone else. On 2 April 2013, an officer for the Department for Work and Pensions telephoned LMW because departmental records showed that WW was also living at the same address.  This was a matter of potential significance as to JW’s entitlement to the severe disability premium as will become apparent from what is said below. There is, again, a record of the telephone conversation (again not verbatim). According to that record LMW told the caller that WW did indeed normally live at the same address as LMW, JW and KW but that, for the past six months, he had been living elsewhere because he was helping another relative in dealing with a family crisis. In order to seek to confirm matters the respondent sent a further form known form IS10 to LMW for completion but it was not, initially completed and returned. However according to what was said in the respondent’s submission prepared for the purposes of the appeal to the F-tT, it was received by the respondent, duly completed, on 21 May 2013. Again, according to the submission, it is said that in completing that form LMW had indicated that she, JW, KW and WW were all residing at the same address.  Pausing there though, I cannot see a full copy of such a completed form IS10 in the papers which were before the F-tT. There is what appears to be the front page but this contains no useful information.  I have looked not only in the Upper Tribunal’s file but also in the file which was sent to the Upper Tribunal by the F-tT when the application for permission to appeal to the Upper Tribunal was lodged. There are, I note, three missing pages (pages 30-33) in both the F-tT’s bundle and the Upper Tribunal’s bundle and it would appear therefore, that the most likely explanation for this is that the full IS10, containing the information given by LMW was simply not placed before the F-tT even though, presumably, it was intended that it should be. There is, though, a copy of the A2 Income Support Review form referred to above. In any event on 21 May 2013, seemingly in partial reliance on the form IS10, the respondent took a decision to the effect that JW was not entitled to a severe disability premium on the basis that he lived with “a non-dependent” (see the relevant definition below) being WW and that he had not been so entitled throughout the period of past receipt.

 

6. After the making of that decision, JJ wrote to the respondent stating that her mother, LMW, becomes confused due to her age, that she has suffered a number of strokes and that she is “almost deaf”. It was suggested that she “lives in the past” and that, as a result of this, may have given incorrect information regarding the residence of WW. It was said that, in fact, WW had not lived at the same accommodation as LMW and JW since 1979. The respondent, though, did not change the decision and this led to an appeal being lodged.

 

 

 

 

Conditions of entitlement for the Severe Disability premium

 

7. There are a number of requirements which must be met. These are contained within the Income Support (General) Regulations 1987. Regulation 3 contains the important definition of a non-dependent.  I have omitted some irrelevant wording but the relevant parts read as follows:

 

3.–(1) In these Regulations, “non-dependent” means any person except someone to whom paragraph (2), (2A) or (2B) applies, who normally resides with a claimant or with whom a claimant normally resides.

 

(2) This paragraph applies to –

(a) any member of the claimant’s family;

(b)….

(c) …

(d)…

 

(2A) This paragraph applies to a person, other than a close relative of the claimant or the claimant’s partner, -

(a) who is liable to make payments on a commercial basis to the claimant or the claimant’s partner in respect of his occupation of the claimant’s dwelling;

(b) to whom the claimant or the claimant’s partner is liable to make payments on a commercial basis in respect of his occupation of that person’s dwelling;

(c) who is a member of the household of a person to whom sub – paragraph (a) or (b) applies.

 

(2B) subject to paragraph (2C), this paragraph applies to –

(a) a person who jointly occupies the claimant’s dwelling and is either –

(i) a co-owner of that dwelling with the claimant or the claimant’s partner (whether or not there are other co-owners); or

(ii) jointly liable with the claimant or the claimant’s partner to make payments to a landlord in respect of his occupation of that dwelling,

(b) a partner of a person to whom sub – paragraph (a) applies.

 

(2C) where a person is a close relative of the claimant or the claimant’s partner, paragraph (2B) shall apply to him only if the claimant’s, or the claimant’s partner’s co-ownership or joint liability to make payments to a landlord in respect of his occupation of the dwelling arose either before 11 April 1998, or, if later, on or before the date upon which the claimant or the claimant’s partner first occupied the dwelling in question.

 

(3)…

 

(4) For the purposes of this regulation a person resides with another only if they share any accommodation except a bathroom, a lavatory or a communal area but not if each person is separately liable to make payments in respect of his occupation of the dwelling to the landlord.

 

(5) In this regulation “communal area” means any area (other than rooms) of common access (including halls and passageways) and rooms of common use in sheltered accommodation.

 

8. Paragraph 13 of Part III of Schedule 2 to the 1987 regulations then sets out the conditions for an award. The relevant provisions (again with some irrelevant wording omitted) read as follows;

 

13. – (1) The condition is that the claimant is a severely disabled person.

 

(2) For the purposes of sub – paragraph (1), a claimant shall be treated as being a severely disabled person if, and only if,

(i) in the case of a single claimant, a lone parent or a claimant who is treated as having no partner in consequence of sub – paragraph (2A) –

(i) he is in receipt of Attendance Allowance or the care component of Disability Living Allowance at the highest or middle rate prescribed in accordance with section 37ZB(3) of the Social Security Act……… and

(ii) subject to paragraph (3), he has no non-dependents aged 18 or over normally residing with him or with whom he is normally residing, and

(iii) no person is entitled to, and in receipt of, a carer’s allowance under section 70 of the Contributions and Benefits Act in respect of caring for him;…

 

(3) For the purposes of sub-paragraph (2)(a)(ii) and (2)(b)(iii) no account shall be taken of –

(a) a person receiving attendance allowance, the care component of disability living allowance at the highest or middle rate as prescribed in accordance with section 3Z7ZB (3) of the Social Security Act…

 

9. So, a claimant will not be entitled to a severe disability premium if he normally resides with a non-dependent unless the non-dependent is receiving attendance allowance or the highest or middle rate of the care component of disability living allowance.

 

The relevant Rules of Procedure

 

10. The First-tier Tribunal’s power to deal with a case without an oral hearing is governed by rule 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 the salient parts of which, for the purposes of this appeal, read as follows;

 

27. – (1) Subject to the following paragraphs, the Tribunal must hold a hearing which disposes of proceedings unless –

(a) each party has consented to, or has not objected to, the matter being decided without a hearing;

(b) the Tribunal considers that it is able to decide the matter without a hearing.

 

11. A Tribunal’s consideration as to whether or not to hold an oral hearing should also take account of rule 2 (the overriding objective) the relevant part of which reads as follows;

2. – (1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes –

(a) dealing with the case in ways which are proportionate to the importance of the case, complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(c) ensuring so far as practicable, that the parties are able to participate fully in the proceedings;

(d) using any special expertise of the Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues.”

 

12. As to documentation which must be provided for the benefit of the tribunal,

 

24. – (4) The decision maker must provide with the response –

 (a)…

(b) copies of all documents relevant to the case in the decision maker’s possession, unless a practise direction or direction states otherwise.

 

The appeal to the First-tier Tribunal

 

13. The claimant, through LMW, in turn assisted by JJ, appealed to the F-tT. It is clear from documents provided, including those referred to above, that the position taken on behalf of JW was that WW had not resided at LMW’s rented premises at any point whilst the severe disability premium had been in payment and that it was only confusion on the part of LMW which had led to incorrect information suggesting the opposite being provided.

 

14. A standard “enquiry form” was sent to LMW as JW’s appointee and she was invited to indicate whether an oral hearing was sought. It appears that she was or may have been assisted in completing that form by JJ but she herself signed it.  It was indicated that an oral hearing would not be required. The respondent did not request an oral hearing either.  Accordingly, following normal practise, the appeal was listed on the basis that it would or might be determined “on the papers”.

 

15. The appeal came before the F-tT for consideration, on that basis, on 27 January 2014. The F-tT could, if it had seen fit, have adjourned for an oral hearing and/ or adjourned for further evidence to be provided. It did not take any of those options but, instead, decided the appeal without a hearing and on the basis of the documentation which was before it.  It dismissed the appeal and concluded that JW was not entitled to the severe disability premium from and including 24 February 2009.  In its decision notice the F-tT said this;

 

“Neither party requested an oral hearing. The Tribunal considered the appeal bundle to page 44 and decided it could determine the case on the basis of the evidence in the papers and it is just to do so.”

 

16. The F-tT subsequently produced, upon request, its statement of reasons for decision (statement of reasons). In its statement of reasons it set out something of the background and history as recorded above. Prior to explaining why it had decided to dismiss the appeal it said this;

 

“16. Neither [LMW] nor her representative requested an oral hearing of the appeal and the case came before myself at the Tribunal in Birmingham for consideration on the papers.”

 

17. Pausing there, the reference to a “representative” is not a reference to a professional representative but, it would appear, to JJ. The F-tT did not say anything else in its statement of reasons about why it had decided to determine the appeal without a hearing.

 

18. It then explained its decision to dismiss the appeal in this way;

 

“22. What is the evidence that there is a further person in the property, (WW) whose presence would entitle [JW] to the severe disability premium?

23. The DWP response indicates that [WW] has been in receipt of benefits over a number of years and that [the address where LMW and JW have resided] has been given as his residential address. It is not noted as a c/o address and no other addresses have been notified to the DWP in respect of [WW].

24. In a telephone call recorded in March 2009 (evidence p17) it is recorded that [LMW] indicated that no other people were in the household.

25. This is clearly incorrect. [LMW], and her representative [JJ] have confirmed that [KW], [JW’s] sister, who is also in receipt of Disability Benefits has always resided with [LMW] at [the address].

26. The telephone conversation recorded on p27 of the evidence indicates that [LMW] confirmed that [WW] was living at [the address] but had been living temporarily with a different sister assisting with her son’s recovery after an accident. This information is very clearly recorded in this telephone note.

27. [LMW’s] daughter, [JJ] has written stating that her mother would have been confused when giving information over the telephone to the DWP. [JJ] in her letter (evidence p45) states that she does not know where [WW] lives and that [WW] has not lived at [the address] since 1979 and that he would be living with friends and other family members. [JJ] however does confirm some of the information given by [LMW] to the DWP in the phone call in that she confirmed that [WW] had gone to assist another family member look after her son after a road traffic accident.

28. I note that [LMW] is elderly. I note that she is also in receipt of Attendance Allowance. However the information that was given to the DWP in the telephone call dated 2 April 2013 appeared clear. This information is of course also consistent with the DWP records which have recorded [WW] as giving his residential address as [the relevant address] and not providing details of any other address.

29. Indeed some of the information given to the DWP officer over the telephone by [LMW] was confirmed by [JJ] which is consistent with the information given by [LMW].

30. Does the fact that [WW] was temporarily living with a different family member to assist in looking after his nephew following an accident indicate that [WW] was not “normally residing” at [the relevant  address]?

31. My view is that if [WW] was residing elsewhere [LMW], through her representative [JJ] would be able to produce some other supporting evidence to confirm [WW] having a different address.

32. My finding of fact is that [WW] was normally residing at [the address] throughout 2009 to 15 April 2013.

33. This is consistent with the DWP’s records and is also consistent with the information given by [LMW] in her telephone conversation with the DWP on 2 April 2013.

34. [JJ]/ [LMW] have not provided any independent evidence to gainsay the above information which supports a finding that [WW] was normally residing at [the address].

35. For all the above reasons I confirmed the decision made by the Secretary of State that [JW] is not entitled to the Severe Disability Premium from 24 February 2009.”

 

19. On 9 June 2014 a district tribunal judge refused to grant an application for permission to appeal to the Upper Tribunal which had been lodged on behalf of JW.

 

The proceedings before the Upper Tribunal

 

20. The application for permission to appeal was renewed with the Upper Tribunal. The completed standard form UT1 indicated that JJ was now the appointee for LMW and that JJ’s representative was WW. The grounds offered were simply a restatement of the case which had been advanced before the F-tT. Nevertheless, I granted permission to appeal, because I was concerned that the F-tT might have erred in law in failing to adequately explain, in light of the particular circumstances of the case, why it had not adjourned for an oral hearing.

 

21. Mr Wayne Spencer, who now acts on behalf of the respondent in connection with this appeal to the Upper Tribunal, has lodged a very helpful written response in which he indicates that the appeal is supported. He says that the F-tT did err in failing to adequately consider adjourning for an oral hearing and goes so far as to suggest that what the F-tT had to say gave “the unfortunate impression that it regarded it as a foregone conclusion that a decision was to be given on the basis of the papers”. He also suggests the F-tT further erred in failing to make adequate findings and in failing to deal with shortcomings in the documentation provided by the respondent. He urges me to set aside the F-tT’s decision and to remit the case to be reheard by a new and differently constituted F-tT. Although the claimant has been invited to reply, such invitation having been sent to the representative WW, no such reply has been received within the one month period permitted by directions.

 

22. It is against the above background that I must now decide this appeal.

 

My analysis

 

23. I am satisfied it is not necessary or appropriate for me to take any further steps to obtain a written reply on behalf of the claimant.  An appropriate opportunity has already been given and, in any event, the respondent has indicated unequivocal support for the appeal. I am also satisfied that there is no need to hold a hearing before the Upper Tribunal. The respondent has not requested such a hearing and no such request has been received on behalf of the claimant. In any event, the matters for me to consider have been sufficiently ventilated in the documentation before me.

 

24. I move on to consider whether or not the F-tT erred in law in the way it dealt with the question of how to resolve the appeal before it. It may be helpful to remind readers of this decision of what was said in MH v Pembrokeshire County Council (HB) [2010] UKUT 28 (AAC) regarding the correct approach to be taken when there has not been a request for an oral hearing.  Essentially, Upper Tribunal Judge Jacobs said that exercising the power to deal with a case without an oral hearing under rule 27 involves a three stage process. The first is really an administrative operation which is the placing of the case before the tribunal for consideration of the papers without the parties.  The second stage commences at the start of the tribunal’s deliberations and involves the tribunal satisfying itself that no-one has asked for an oral hearing. If, however, at least one of the parties has then there must be one.  The third stage occurs when the tribunal actually considers the case. It must then decide whether to give a decision or to adjourn.  As Upper Tribunal Judge Jacobs pointed out, any such adjournment may be to allow an oral hearing to take place or may be to obtain, by way of directions, further evidence. If an oral hearing is directed that is a judicial decision under rule 27(1)(b) and if it is an adjournment that is a judicial decision under rule 5(3)(h) and, in either case, the decision must be made in light of the overriding objective.  Matters to be considered in accordance with the overriding objective are those referred to in rule 2 and set out above but that is not an exhaustive list and other considerations may also be taken account of.

 

25. In this appeal the first two stages were properly undertaken.  In particular it is apparent that the F-tT did satisfy itself that no request for a hearing had been made and it said as much at paragraph 16 of its statement of reasons.  However, in my judgment, it did not properly or adequately deal with stage three.  I would not go so far as does Mr Spencer, in saying that the F-tT, in effect, regarded it as a foregone conclusion that a decision was to be given on the basis of the papers simply because no oral hearing had been requested.  That might appear to be the case from what was said in the statement of reasons when looked at in isolation, but, as noted above, the F-tT did indicate in its decision notice its view that it was “just” to decide the case on the papers which does imply some consideration of the relevant factors appearing within rule 2.  However, even when putting together what the F-tT said in both the decision notice and the statement of reasons, it’s thought processes as to how it reached the view that it would be just to proceed are not set out and its decision to proceed is, therefore, unexplained.

 

26. There might be some very straightforward cases where a lack of explanation would not matter. This, though, was not such a case for a number of reasons. Firstly, there was evidence that LMW’s ability to always convey accurate information might be in question. In this context, the form IS10 which had been completed on 27 February 2009, and which was before the F-tT in full, suggested that JW was living alone at the relevant address.  Given that it appears to be accepted by all parties that LMW (who appears to have been the tenant at the property) and KW were also residing there, the impression given by that completed form is surprising.  There was then the telephone conversation which took place shortly after that form had been received and in which LMW appears to have said that she and JW were residing at the property but failed to mention the presence of KW. There was no advantage to be gained by LMW hiding KW’s presence or hiding the fact that she and JW were living at the same address so her omission of correct uncontroversial information might have been taken as an indication that information provided by her in the past was potentially unreliable which might, in turn, have pointed to the wisdom of holding an oral hearing so that matters could be more thoroughly explored.  

 

27. There was then what had been said about LMW’s age and health. JJ had written a letter which had been received by the respondent on 30 September 2013 and which was in the papers before the F-tT. She had said that LMW was aged 86 years, had difficulty hearing, had had a history of strokes and had been confused. Whilst it is true that no medical evidence to that effect had been provided, that information appeared to merit some consideration or investigation and, at least, was also capable of suggesting that information previously given by LMW might possibly be unreliable. Even looking at things at a most basic level someone who is “almost deaf” as JJ said of LMW might have difficulty in understanding questions put during a telephone conversation.  Further, the F-tT would have been aware of the fact that the respondent was looking into whether LMW was suitable to continue as the appointee for JW because that was said in a supplementary submission which was before the F-tT.  That, coupled with the provision of uncontroversial but incorrect information might have supported the contention regarding confusion.

 

28. There was the question of potential recoverability of a substantial overpayment from the claimant who was considered by the respondent to be within a vulnerable category of persons and who clearly had difficulties of various sorts as illustrated by his receipt of the maximum available award of disability living allowance.  The F-tT was not dealing with a decision which related to recoverability but the documents before it did indicate that the respondent had taken the view that there had been an overpayment amounting to a figure in excess of £12,000. Given the future prospect of recovery it might have been thought that an oral hearing at which, if not the claimant himself, some of his family members could have given evidence, might have been a more appropriate way to proceed.

 

29. There was the state of the documentation. The F-tT did appear to have been influenced by the fact that the respondent’s records showed that WW was living at the relevant address. The evidence before the F-tT consisted of a document entitled “address history”, which was merely a print-out and two other “screen print” documents. There was no documentation emanating from WW in which he had said he had ever resided at the relevant address.  There were no utility bills, items of correspondence or the like which placed him there.  There were no copies of benefit claim forms which placed him there. Such limited documentation as there was, therefore, as Mr Spencer points out, was of a second hand nature. Presumably, for the respondent to have a computer record (the address history) showing WW living at the relevant address it would have had documents which had led to that computer record being made. The F-tT might have thought, therefore, had it considered this particular matter, that there was reason to believe there was evidence relevant to the issues it had to decide which had not been provided to it.  Perhaps of even more concern than that, though, is the absence of the key pages of the form IS10 referred to above. It does appear that the content of that form played a role in the respondent’s deliberations which led to the decision under appeal being made. Certainly that is the impression to be gained from what is said at paragraph 9 in the respondent’s submission to the F-tT.  The F-tT in fact, to its credit, did not simply take the respondent’s word for it and did not, in fact, appear to attach weight to what the respondent said the IS10 indicated, when reaching its decision but, nevertheless, that document represented part of the primary evidence in the case and had not been produced for the benefit of the F-tT in circumstances where, seemingly, it could have been. Whilst it might be thought that the document, inevitably, if it had been produced, would have weighed against the claimant it might have proved the case that the information contained therein had been misread or was subject to interpretation in some way. It seems to me, therefore, it was important for the absence of that document to have been addressed by the F-tT in some way. One way would have been for there to have been an adjournment with directions for production.

 

30. So then, there were a number of factors which were capable of suggesting that an adjournment either for an oral hearing or for obtaining further evidence or, in my view most appropriately, both, would have been a fair and just means of proceeding.  Factors which might have weighed against an adjournment would have included, for example, the avoidance of delay and the fact that an oral hearing had not been sought on behalf of the claimant. It is also the case that, in general terms, adjournments might be said to cause delay to others waiting for a hearing though that factor,of itself, might not ordinarily carry much weight.  

 

31. In AT v Secretary of State for Work and Pensions (ESA) [2010] UKUT 430 (AAC) Upper Tribunal Judge Lane said that a choice made by a claimant to have an appeal decided on the papers “should be respected unless there are particular circumstances which would make it unfair to proceed”. I think, though, certainly in the context of unrepresented claimants in the Social Entitlement Chamber, that that represented little more than a statement, with which I would respectfully agree, that the choice of the parties will represent a starting point for a consideration as to whether there should be a hearing or not. In any event Judge Lane also pointed out that the power to decide an appeal on the papers “should only be exercised where it is fair and just to do so”.

 

32. Here, on the face of it, there seemed much to commend an adjournment and relatively little to commend proceeding on the papers.  I would not go so far as to say that the circumstances were such that the F-tT could not rationally have reached any other decision but to adjourn but it is certainly the case that, in those circumstances, if it were not to do so it had to provide an explanation consisting of some real detail sufficient to demonstrate that an appropriate exercise in balancing the competing factors had been carried out.  It did not do that.  It did, therefore, in my judgment, err in law.

 

33. As to whether the error is a material one, a failure to supply a full explanation as to why it is considered appropriate to proceed on the papers will not always mean a decision of the tribunal has to be set aside. There might be cases, perhaps involving very straightforward issues, and/ or where it seems most unlikely that a claimant would ever attend an oral hearing, and/ or where little is at stake, where only a very brief explanation, perhaps no more than a sentence or two, would suffice.  There may be cases where any tribunal acting rationally would have dealt with the case on the papers such that an omission to say anything about why that option has been chosen will not necessarily be fatal though it would, at least, amount to bad practice not to say anything at all.  None of this, though, was the case here so the error was material.  

 

34. I would observe, as a general point, that considering whether to decide an appeal on the papers or adjourn either for further evidence or for an oral hearing or both is a matter of importance. The choice made by a claimant is certainly a relevant factor, and as I have said above, a starting point, but whilst there may be an understandable temptation on the part of a busy and perhaps at times overburdened tribunal to simply jump from noting a claimant’s choice to deciding to determine on the papers (and I do not say the F-tT did that here) that sort of reflex action should be resisted. 

 

35. In light of all of the above I do set aside the decision of the F-tT because it erred in law in failing to adequately explain, in the circumstances of the case, why it was not adjourning either for an oral hearing or for further evidence or both.

 

36. Having decided to set aside the F-tT’s decision it seems to me that the proper course is remittal. There are further facts to be found and that task is best left to the F-tT as an expert fact-finding body.

 

37. It is not now necessary for me to decide whether or not the F-tT erred in the other ways in which it was suggested that it may have done. However, it is right to say that the F-tT did proceed in the absence of documents which there is good reason to think exist and which might have assisted it in its deliberations. It is also right to say, that on the face of it, the respondent may have failed to comply with rule 24(4)(b) of the Tribunal Procedure Rules by failing to provide the sorts of documents referred to above. It is important, of course, that the respondent does keep that duty in mind when filing submissions and compiling documentary evidence for the purposes of an appeal to a tribunal. My directions, however, should lead to the production of any such previously absent documents for the new F-tT.  Of course, the respondent cannot produce documents which he does not in fact possess, and if the respondent no longer has the various documents referred to above then all he can do is say so within the timeframe set out by my directions though an explanation as to why such documents can not now be produced (if that be the case) should be given.

 

38. The other way in which it was suggested the F-tT had erred was with respect to a lack of relevant factual findings. In this context, and bearing in mind the conditions of entitlement for severe disability premium, it is right to say that findings of some detail will often be called for with respect to, for example, the factual question of the living arrangements of claimants and any non-dependents in order to ascertain whether it can be genuinely said that they are living within the same household.

 

39. It will be noted that I have directed that there be an oral hearing before the new F-tT. I have made that direction in the hope that at least someone will be able to attend on behalf of the claimant and will be able to give some evidence of value. It seems to me, on the face of it, that JJ and WW may well be able to provide valuable oral evidence as, possibly, may LMW.

 

40. The appeal, then, is allowed to the extent and on the basis set out above.

 

 

(Signed on the original)

M R Hemingway

Judge of the Upper Tribunal

 

Dated 28 May 2015