IN THE UPPER TRIBUNAL Case No: CDLA/197/2015

ADMINISTRATIVE APPEALS CHAMBER

 

 

Before UPPER TRIBUNAL JUDGE KNOWLES QC

 

 

Decision:  The appeal is allowed. The decision of the First-tier Tribunal (the tribunal) sitting at Walsall East on 18 September 2014 under reference SC196/13/04098 involved the making of an error on a point of law. The tribunal’s decision is set aside and the case remitted to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out at the conclusion of the Reasons below.

 

 

REASONS FOR DECISION

 

Introduction

 

1.        On 25 June 2013 the Secretary of State decided that the Appellant was not entitled to disability living allowance (DLA). On 20 November 2014 (pages 139-1142) the tribunal’s reasons were sent to the Appellant following a hearing of the Appellant’s case on 18 September 2014. The tribunal awarded the Appellant the mobility component of DLA at the lower rate. This is the Appellant’s appeal from the tribunal’s decision.

 

2.        I gave permission to appeal on 3 March 2015. The Secretary of State has filed submissions supporting this appeal and inviting me to set aside the tribunal’s decision and remit the case for a rehearing (pages 161-173). His helpful and cogent submissions append two Upper Tribunal decisions to support his legal arguments. I am very grateful to the Secretary of State for his assistance.

 

3.        The Appellant, who is unrepresented, has filed some additional submissions giving further detail as to how her life is affected by her physical and mental problems. I am unclear from the Appellant’s response whether she formally opposes the course of action proposed by the Secretary of State.

 

4.        Given that she is unrepresented and describes herself as being confused by the legal jargon, the Appellant’s wishes as to whether there should be an oral hearing of this appeal appear to be a little muddled. This is an appeal which is not opposed by the Secretary of State and thus, in common parlance, the Appellant has “won” her case. I am satisfied that her appeal should be allowed and the matter remitted to the First-tier Tribunal for re-hearing. She will have an opportunity to adduce additional evidence and speak in support of her appeal to the First-tier Tribunal re-hearing her case.

 

5.        Pursuant to rules 34(1) and 34(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008, I may make any decision without a hearing as long as I have had regard to any view expressed by a party when deciding to hold a hearing and when considering the form any such hearing should take. I have taken the Appellant’s views into consideration but I am satisfied in all the circumstances that I can proceed to determine this appeal properly and justly without holding an oral hearing.  

 

 

Relevant Factual Background

 

6.        The Appellant suffers from trimethylaminuria (fish odour syndrome). This is an uncommon genetic disorder that causes a strong body odour usually described as being like rotting fish, faeces or garbage. This odour is created when the body is unable to break down trimethylamine, a chemical produced in the gut particularly when certain protein and choline rich foods are digested. The strong odour manifests itself in a person’s sweat, urine and breath. Some sufferers have a strong odour continually but in most cases it varies in intensity over time. There is currently no cure or approved drug treatment to treat this condition but symptoms can be improved by making certain lifestyle changes such as avoiding choline rich foods such as eggs, beans, and sea food and taking laxatives, probiotics and charcoal tablets. It appears that stress and emotional upset may play a role in worsening symptoms.

 

7.        The Appellant described herself as suffering from anxiety, depression, panic attacks, paranoia, occasional suicidal ideation and fear of enclosed spaces with other people [page 9]. Many, if not most, of her mental health symptoms are consequential upon the distressing impact of fish odour symptom on her life. It is no understatement to describe the effect of this condition as devastating on a person who, until June 2011 when she was sacked on account of this condition by the company for which she had worked for fifteen years, had worked full time since leaving school. Since that date her symptoms have worsened and her mental health has taken a substantial downturn. Her account of the impact of this condition on her life makes for poignant reading [pages 41-45].

 

8.        Her claim was supported by medical evidence from her GP including a blood test confirming the presence of this disorder.

 

9.        I note that the Secretary of State accepted on 21 July 2014 that the Appellant had limited capability for work related activity for the purpose of claiming Employment and Support Allowance. This decision was made on the basis that the Appellant had significant difficulties dealing with other people because of her body odour. Her evidence that she had suffered physical and verbal abuse from people in the street as well as elsewhere and that she isolated herself in her home, avoiding contact with others, was accepted by the Secretary of State in connection with her claim for this benefit [pages 128-130].

The Tribunal’s Decision

 

10.     The appeal was due to be heard by a tribunal on 3 April 2014. However the hearing was adjourned as the tribunal considered that there was insufficient evidence in the papers on which it could make a determination. In particular there was thought to be little information about the impact of anxiety and depression on the Appellant’s daily activities.  In a letter dated 23 July 2014 the Appellant explained why she found it stressful to be around other people, namely because of her body odour and the often hostile reaction this provoked in others. She said she could not attend a hearing because of her condition and asked whether the tribunal could telephone her on the day of the hearing if it had any questions [page 127]. There was evidence in the papers that the Appellant had previously requested a home visit for an assessment that appeared to be related to a claim for Employment and Support Allowance [page 72].

 

11.     The adjourned tribunal hearing took place on 18 September 2014. The Appellant had requested an oral hearing but she did not attend. The tribunal recorded that a letter from the Appellant dated 23 July 2014 said that she could not attend in person and asked to be telephoned if the tribunal had any questions. The tribunal decided to proceed in her absence as it considered it had sufficient information to make an informed decision. It stated that it was also mindful of the Appellant’s condition and the issues she had raised in her appeal documents though I note that it did not spell out how those matters had influenced its decision to proceed in her absence.

 

12.     The tribunal found that the Appellant suffered from Trimethylaminuria Disorder (fish odour syndrome) and anxiety and described this as “an upsetting and distressing condition for her”. It held that she had difficulties walking in unfamiliar places without guidance and supervision due to this disorder in combination with her anxiety and awarded her the lower rate of the mobility component of DLA on an indefinite basis. It further found that she did not have care needs as she had not claimed for these in her form and because she was able to self-care according to the Examining Medical Practitioner. It noted that her reason for claiming DLA was to pay for hot water for constant baths and to purchase charcoal tablets and probiotics.

 

13.     The tribunal recorded its considerable sympathy for the Appellant’s problems but concluded that it had made the maximum award that it could in all the circumstances.

 

14.     Permission to appeal was refused by the tribunal on 18 December 2014 despite concern being noted in that ruling that the tribunal had not investigated the Appellant’s ability to take part in normal social and community life which could amount to attention with bodily functions.

 

 

The Practice Direction: Child, Vulnerable Adult and Sensitive Witnesses

 

15.     The Secretary of State submits that, in the circumstances of this case, the tribunal was required to consider the guidelines set out in the Senior President of Tribunals Practice Direction of 30 October 2008 (Practice Direction (First-Tier and Upper Tribunals: Child, Vulnerable Adult and Sensitive Witnesses)).  In that Practice Direction a sensitive witness is defined as “an adult witness where the quality of the evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with giving evidence in the case”.  Where a tribunal determines that a sensitive witness is required to give evidence to enable a fair hearing, the Practice Direction states that the tribunal should, amongst other matters, consider how to facilitate the giving of any such evidence by means such as telephone or video link.

 

16.     I agree with the Secretary of State’s submission that there was no indication that the tribunal addressed its mind to the Practice Direction and thereby erred in law. Dealing with this case fairly and justly required attention as to how the tribunal might facilitate the Appellant’s evidence in circumstances where there was no doubt that she was a sensitive witness by reason of the distress she was likely to experience should she have to attend an actual tribunal hearing.

 

17.     My view is reinforced by evidence in the First-tier Tribunal file that the Appellant had made plain her wish to speak to the tribunal by telephone [enquiry form dated 25 November 2013], a wish which was repeated when she rang the Tribunals Service on 21 March 2014 [GAPS record].  This was an Appellant who wished to communicate with the tribunal but who was disabled by reason of her physical and mental health from attending a hearing. I do not know whether the tribunal was aware of the history of the Appellant’s wishes in respect of giving evidence. I suspect not as no reference to this was made in the Statement of Reasons. Nevertheless, in any event, there was ample material before the tribunal which ought to have compelled its close and anxious attention to the contents of the Practice Direction.

 

18.     My observations in this regard are given added force by the tribunal’s failure to deal with this case fairly and justly given that, pursuant to rule 31, it decided to proceed in the Appellant’s absence.

 

 

Rule 31

 

19.     When giving permission to appeal, I commented that the tribunal’s ability to address adequately the satisfaction of the care component of DLA was significantly compromised by its decision to determine the appeal on paper. This remains my view.

 

20.     In its decision notice the tribunal recorded: “there was nothing on file to explain her non-attendance and no message had been received. The tribunal considered the evidence available and were satisfied that they had sufficient evidence to make a decision and that it was just and appropriate to proceed in the absence of the Appellant. The tribunal considered Rule 31 in this regard”.

 

21.     However the Statement of Reasons made reference to the Appellant’s request for an oral hearing and to her letter dated 23 July 2014 in which she said she could not attend in person but asked that she be telephoned if the tribunal had any questions. The tribunal nevertheless recorded that it was appropriate and in the interests of justice to proceed in the Appellant’s absence as it considered there was sufficient evidence on the papers to make an informed decision.

 

22.     Though the tribunal clearly had regard to rule 31 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008, it made no reference to the overriding objective in rule 2(1) which informs the application of rule 31. Had it done so, it might well have reached a different conclusion. The factors set out in rule 2(2) serve to focus the tribunal’s mind on dealing with matters fairly and justly. In this case, consideration of rule 2(2)(c) - “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings” – would have suggested that the tribunal consider hearing from the Appellant on the telephone as she had asked. Further rule 2(2)(c) invites, in the appropriate case, consideration of the Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses  before taking a decision to proceed in a party’s absence. This was just such a case.

 

23.     I agree with the Secretary of State that fairness required that the Appellant be given an opportunity to take part in the proceedings, a point which has added force given that the Secretary of State was himself represented before the tribunal. The tribunal also simply failed to ask itself whether it might obtain further useful evidence from the Appellant if it heard from her directly via telephone.

 

24.     I find that the tribunal’s application of rule 31 was erroneous in law for all of these reasons.

 

 

Inadequate Findings: Care Component

 

25.     When giving permission to appeal, I suggested that the tribunal’s findings as to the care component were arguably inadequate in that it failed to investigate the Appellant’s care needs adequately in the light of the evidence before it. The Secretary of State accepts my view on this issue.

 

26.     In this case there was evidence before the tribunal in which the Appellant described how her mental state affected her ability to care for herself. She stated that when she was extremely depressed she had to stay in bed for several days at a time [page 22]. There are GP records which show that she suffers from panic attacks with anxiety and depression [pages 65-68]. On page 92 the Appellant stated that she felt extremely uncomfortable and anxious when in enclosed spaces and that her condition had affected her mental state to the extent that she had attempted suicide five times [page 93]. She had been in touch with a support group on the internet which was her only contact with the outside world [page 95]. Unfortunately her computer was broken and she could not afford the broadband costs to maintain this important source of help. She described herself as “struggling to survive” on her own [page 3] and living in a state of solitary confinement [page 92].

 

27.     The tribunal found that, although the Appellant suffered from anxiety and panic attacks, she had no significant mental health or self care issues and was able to live alone. The tribunal, in my opinion, failed to say what it made of the evidence set out in paragraph 25 above and thus failed to make adequate findings so as to establish whether the Appellant required prompting or motivating to enable her to care for herself and, if so, how often such attention was required.

 

28.     The tribunal’s analysis of the Appellant’s care needs was superficial, relying as it did on the Appellant’s own self-assessment and on an arguably inadequate report by an Examining Medical Practitioner. Ironically the tribunal had – quite properly in my view – disagreed with both the Examining Medical Practitioner’s and the Appellant’s assessment of her own functioning on the issue of mobility yet it had failed to exercise its inquisitorial function when it came to consideration of the Appellant’s care needs.

 

29.     I find that the tribunal erred in law in this respect for the reasons set out above.

 

 

Conclusion

 

30.     In the light of my findings, I am satisfied that the appropriate order is the setting aside of the tribunal’s decision and the remittal of the Appellant’s case for fresh consideration by a differently constituted tribunal. In my judgment, it would not be in the interests of justice to restrict the scope of the remitted hearing, and so the Appellant is entitled to advance any and all points she wishes on their merits at the fresh hearing.

 

31.     Though the Appellant has succeeded in this appeal, this should not be taken as an indication that she will be successful at any rehearing.

 

32.     This Appellant remains unrepresented. I appreciate that it may be very difficult for the Appellant to access help with representation given her isolated lifestyle. However I urge her to seek advice and/or representation in connection with her appeal from a welfare rights organisation or from the Citizens Advice Bureau.

 

 

 

CASE MANAGEMENT DIRECTIONS

 

 

33.     The appeal should be considered at a hearing which the Appellant has been given the opportunity to attend by telephone in accordance with the Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses.

 

34.     The new First-tier Tribunal should be wholly differently constituted from the tribunal previously involved in determining the appeal on 18 September 2014.

 

35.     If the Appellant has any further written evidence, in particular medical evidence, to put before the tribunal, this should be sent to the tribunal office within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision by the Secretary of State under appeal (namely 25 June 2013).

 

36.     The differently constituted tribunal must conduct a complete rehearing of the issues that are raised by this appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

 

37.     The tribunal must deal with any procedural questions, as may arise, on their merits.

 

38.     The tribunal must consider all aspects of the case, both fact and law, entirely afresh.

 

39.     The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against – see section 12(8)(b) of the 1998 Act – but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of the decision.

 

 

 

 

 

 

Gwynneth Knowles QC

Judge of the Upper Tribunal

4 June 2015.

 

[signed on the original as dated]