Upper Tribunal (Administrative Appeals Chamber)

Secretary of State for Work and Pensions (DLA) v LR (Tribunal procedure and practice (including UT) : fair hearing) [2015] UKUT 347 (AAC) (19 June 2015)

 

 

IN THE UPPER TRIBUNAL Appeal No.  CDLA/2437/2014 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge K Markus QC

 

 

The decision of the Upper Tribunal is to allow the appeal.  The decision of the First-tier Tribunal made on 6 February 2014 under number SC227/13/06099 was made in error of law.  Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions.

 

Directions

 

1. This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

 

2. The members of the First-tier Tribunal who reconsider the case should not be the same as those who made the decision which has been set aside.

 

3. The parties shall send to the relevant HMCTS office as soon as possible any further relevant evidence, if there is any.  If they cannot send that evidence within one month of the issue of this decision the parties will need to contact that office to let them know that further evidence is expected. 

 

4. The new tribunal will be looking at the claimant’s circumstances at the time that the decision under appeal was made, that is 21 March 2013.  Any further evidence, to be relevant, should shed light on the position at that time.

 

5. The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal.  Depending on its findings of fact, the new tribunal may reach the same or a different conclusion to the previous tribunal.

 

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

 

 

REASONS FOR DECISION

Introduction

1.    The issue which arises in this appeal is whether it was lawful for the First-tier Tribunal to take into account its experience in other cases of the reports by the healthcare professional whose opinion in relation to the claimant was relied upon by the Secretary of State in this appeal, without giving the Secretary of State an opportunity to comment.

2.    I directed an oral hearing of the appeal because of the potential wider relevance of the issues.  The hearing took place at Field House, London, on 21 May 2015. The Secretary of State, who is the appellant in this appeal, was represented by Mr Stephen Cooper, solicitor.  The respondent (who is the claimant) was represented by Ms Hannah Wright of the Free Representation Unit. 

 

Facts

3.    On 10 September 2006 the Secretary of State had made an indefinite award to the claimant of the lower rate of the mobility component of disability living allowance (DLA) and the middle rate of the care component.  It is not clear what disabling conditions the Secretary of State relied upon at that time.  It seems from a GP report prepared that the disabling conditions which generated the award were non-epileptic fits, depression and migraine. The claimant had also relied upon ankylosing spondylitis.

4.    The claimant was required to complete an enquiry form which was received by the Secretary of State on 31 January 2013. The conditions upon which she relied were ME from which she said she had suffered for 12 years, depression, migraine and ankylosing spondylitis.  She attended a medical examination following which a report was completed by the healthcare professional (“Dr G”) on 5 March 2013.  On 21 March 2013 the Secretary of State decided that the claimant’s condition had gradually improved and that she no longer satisfied the conditions of entitlement for either component of DLA.  The award was superseded with effect from the date of the decision because the Secretary of State decided that the claimant could not reasonably have been expected to know that the change of circumstances should have been notified.  The claimant appealed to the First-tier Tribunal.

5.    The evidence before the First-tier Tribunal included the enquiry form completed by the claimant in which she described significant problems with walking. The tribunal also had the report of Dr G, which was completed on the DWP pro forma.  It covered a wide range of matters including the disabling conditions, a summary of the claimant’s medical history, medication, the claimant’s description of her impairments and functional restrictions, an account of the claimant’s typical day, clinical findings, and a summary of the doctor’s conclusion as to the claimant’s functional ability and its variability.  He noted that there was no convincing evidence that the claimant had ankylosing spondylitis. He found that the claimant had full function in all lower limbs and slight impairment in spinal function and observed that she stood sat, stood and walked normally. In the summary of functional ability he noted that the claimant had a good range of movement in all limbs and a reasonable level of spinal movement.  He noted that the claimant’s gait was normal, her balance good, that she did not use walking aids or prostheses, that she suffered pain in her legs and back when walking, and that her likely speed of walking was normal, and he concluded that she was likely to be able to walk 200 metres before the onset of severe discomfort. The evidence which he set out to support his opinion on her ability to walk is hard to read but it includes “Could walk 200 m. Symptoms may vary but function will not”.

6.    The claimant attended and gave evidence to the First-tier Tribunal.  There is a dispute as to whether the Secretary of State was represented.  I address this below.

7.    The First-tier Tribunal allowed the appeal. It set aside the decision of the Secretary of State and determined that the claimant was entitled to the mobility component at the higher rate for a limited period, on the ground that she was virtually unable to walk.  The Statement of Reasons stated that the claimant “impressed the majority of the tribunal members as an honest witness”.  It set out her evidence as to her ability to walk and then continued as follows:

“5. Two tribunal members accepted the appellant’s evidence about walking and, looking at matters as a whole, those members had no doubt that most of the time the appellant could not walk a distance in excess of 50 metres with reasonable regularity and was therefore virtually unable to walk.  On her best days, as the appellant said, she was able to walk more than 50 metres but the majority accepted that these days were very much in the minority.  One tribunal member did not accept the appellant’s evidence on walking and considered that on most days the appellant would be able to walk at least 50 metres and was not virtually unable to walk.

6. We noted the opinion of Dr [G], at page 115, that the appellant should be able to walk 200 metres before the onset of severe discomfort. The tribunal have seen numerous reports from Dr [G] over the years and in addition to being very difficult to read, all three members of the tribunal agreed that Dr [G] almost invariably overestimates the appellant’s normal walking ability. He also invariably includes the phrase “symptoms may vary but function will not” as appears on page 116.  In the tribunal’s experience of chronic fatigue syndrome, both the severity of symptoms and also function, ie the ability to walk and self care, can and usually do vary from day to day. For these reasons, we do not accept Dr [G’s] opinion.”

8.    I gave permission to appeal to the Secretary of State on the ground that the tribunal’s dismissal of the opinion of Dr G based on the members’ previous experience of his reports arguably constituted a breach of natural justice and that the tribunal failed to take into account relevant evidence.

 

The submissions of the parties

9.    Mr Cooper, on behalf of the Secretary of State, submits that it was a breach of natural justice for the tribunal to reject the opinion of Dr G on the basis of the members’ criticisms of his reports in previous cases, without first giving the Secretary of State an opportunity to respond to those criticisms. Mr Cooper submits that a presenting officer attended the tribunal hearing and so she could have addressed the tribunal’s concerns had they been put to her.  Even if no presenting officer had been present, the tribunal should have adjourned in order to give the Secretary of State an opportunity to address the tribunal’s concerns about Dr G’s reports.  He also submits that the tribunal acted unreasonably in rejecting Dr G’s report and failed to give adequate reasons for doing so.

10. Ms Wright, on behalf of the claimant, submits that the tribunal’s views of Dr G’s reports were not material to the decision as the tribunal had taken detailed evidence from the claimant, found her to be an honest witness, and so accepted her account of her difficulties.  She submits that the statement of reasons shows that the tribunal engaged in substance with Dr G’s report and the tribunal members did not close their minds to it, and that the tribunal’s opinion of Dr G’s reports was merely a factor confirming the decision that it had reached on the evidence and so there was no need to put the concerns about Dr G’s reports to the Secretary of State.  She submits that the evidence shows that no presenting officer had attended the tribunal hearing and the Secretary of State could not now complain about the tribunal’s failure to adjourn in order to give him a chance to respond. Even if (contrary to her submissions) a representative had been in attendance, she submitted that there was no need to put the concerns to the representative because there was nothing that could have been said in response.  It was not practicable to obtain Dr G’s previous reports or details of the other cases in which the tribunal had come across his reports.  She submitted that the tribunal had engaged with the key evidence and its reasons were adequate.

 

Discussion

Approach to the evidence and reasons

11. The tribunal decided to prefer the evidence of the claimant to that of Dr G. There was nothing wrong with it doing so, if that conclusion was reasonably open to it taking into account relevant factors and if it adequately explained its conclusion.  Neither of those conditions were satisfied in this case.

12. As to the former, the tribunal made little attempt to evaluate the substance of Dr G’s opinion in this particular case. Although it took into account its own contrary experience of ME, the tribunal did not address any aspect of Dr G’s report other than the short extract from page 115. Yet there was a great deal in Dr G’s report, much of which I have summarised at paragraph 5 above, which was relevant to determining what weight to afford to his opinion.  The tribunal made no attempt to analyse and evaluate Dr G’s report as a whole. It seems that the tribunal did not do so because of its unfavourable opinion of Dr G’s reports in general, but that cannot excuse the failure to have regard to other material factors.  Alternatively, the tribunal’s reasons were inadequate to explain how it addressed the material aspects of Dr G’s report.

Natural justice

13. Neither of the parties’ representatives had specific instructions as to whether the Secretary of State was represented at the First-tier Tribunal hearing and so invited me to draw inferences from the record of proceedings.  The position is not clear from the judge’s note of evidence contained in the record of proceedings.  However, the front page of the record is more helpful.  The names of those participating in the hearing are recorded there.  The names of the tribunal members are typed.  The names of others involved are written by hand.  It is not the same handwriting as that of the judge as this would have been completed by a clerk.  On the left hand side of the page, on the pro forma, there appears:

“Appellant: *Not present

Respondent: *Not present”

and an instruction to “*delete as appropriate”.  The word “Not” has been deleted  beside “Appellant”, so that she is clearly marked as present, but it has not been deleted beside “Respondent”.  However, on the right hand side of the page there is written, by hand, what appears to be the names of those attending.  The clerk and the claimant’s “friend/rep” are named. Under the heading “Representatives for the:” there is nothing beside the words “Appellant” or “Respondent”. But beside “Adjudication Authority” is written “Ms G Rowland”. It is most unlikely that this name would have been included unless the Secretary of State’s representative had been present.  In social security cases the Tribunal Service would not generally know a representative’s name unless the representative was present at the hearing.  There is no other documentation in the bundle nor in the First-tier Tribunal file which names Ms Rowland as the representative for the Secretary of State.  Form AT37 provided to the First-tier Tribunal simply notes the presenting officer as “Newcastle” and then provides the name and address of the relevant office.  The written submissions provided on behalf of the Secretary of State prior to the hearing were signed by other individuals within the Department for Work and Pensions and none included the name of Ms Rowland. In addition, on form AT37 the Secretary of State requested an oral hearing even if the claimant chose a paper determination.  This makes it all the more likely that the Secretary of State would have sent a representative to the hearing.  I conclude, on balance of probabilities, that the Secretary of State’s representative was present at the hearing. 

14. I turn then to the question whether it was improper for the tribunal to take into account the impression that it had formed of Dr G’s opinions based on the members’ previous experiences of his reports?  Neither party submits that it was wrong for the tribunal to do so. Mr Cooper accepts that as an expert body the tribunal was entitled to choose which evidence as to the claimant’s health and mobility needs it preferred, and to call upon its background knowledge in doing so.  Ms Wright agrees and relies on the decision in DB v Secretary of State for Work and Pensions (II) [2010] UKUT 144 (AAC) in particular at paragraph 51, to the same effect. 

15. I conclude that there was no objection in principle to the tribunal taking into account its previous experiences of Dr G’s reports.  A tribunal is entitled to make use of information which it has obtained for itself: HI v Secretary of State for Work and Pensions [2014] UKUT 238 (AAC) at paragraphs 10-13.  Equally it is entitled to take into account its own knowledge acquired from prior experience, and it may be quite unrealistic to expect otherwise.  The judgment of Lord Parker CJ in Crofton Investment Trust Ltd v Greater London Rent Assessment Committee [1967] 2 All ER 1103, resonates in this context:

“a committee of this kind under a procedure which is clearly to be intended to be informal and not to be carried through with the precision of a court of justice, is fully entitled to act, as it has been said, on their own impression and on their own knowledge. It is idle in my view to think of gentlemen manning this committee and sitting maybe day after day without acquiring experience and knowledge of conditions in the locality, and to say that they should shut their eyes to what they know of their own knowledge, and act only on such evidence as may or may not be put before them, seems to me to reduce the matter to absurdity.”

16. The submissions in this appeal have rightly focussed on the requirement of the tribunal to act fairly in making use of such information.  In each of the cases referred to in the previous two paragraphs, the judgments made clear that the key issue is the requirement on the tribunal to make use of its knowledge fairly. In the words of Lord Parker CJ in Crofton Investments:

“It is quite clear that whenever a new point emerges, something which might take a party by surprise or something which the committee have found out and of which the parties would have no knowledge, fairness would clearly dictate that they should inform the parties and enable them to deal with the points.”

17. In a case such as the present, the observations of Upper Tribunal Judge Wikeley in DB are particularly  pertinent:

“51. ... the tribunal is obviously able to draw on the expertise of its medical member(s).  Their knowledge is plainly relevant to helping the tribunal as whole to assess the evidence.  The medical members’ specialist knowledge can also be drawn upon to explain, complement or contradict other evidence (see Jacobs, Tribunal Practice and Procedure at para. 10.31).  However, the tribunal will need to be alive to natural justice considerations – so the specialist knowledge will need to be disclosed if one of the parties would otherwise be taken by surprise or have no knowledge of it. So if the tribunal’s medical members have specific knowledge about the standing of either Dr Reed or Dr Myhill, then it may well be necessary to put that to the parties for comment.  Similarly, the medical members cannot go beyond the case papers and conduct their own researches without giving the parties the opportunity to comment: see Busmer v Secretary of State for Defence [2004] EWHC 29 (Admin)...”

18. This is not to say that a tribunal must always give the parties an opportunity to comment on the specialist knowledge of its members.  For instance there is nothing wrong with a medical member using his or her own expert knowledge to weigh and interpret the evidence, nor in the member imparting such knowledge and conclusions reached on the basis of that knowledge, to the other members of the tribunal.  But the position is different where the knowledge in essence amounts to evidence. In R(S) 1/94 the Commissioner decided that it was unfair for a tribunal member to take into account his own knowledge, which was not presented as evidence during the proceedings and on which the claimant did not have an opportunity to comment. He said:

“4. The dividing line between drawing on specialist knowledge in interpretation of the evidence and in giving evidence may often be a fine one; but I am satisfied that in the instant case that what the member told his fellow members was in the nature of evidence... It seems to me open to a member of the tribunal to speak of his specialist knowledge, even if it is in the nature of evidence. However what he must not do, and what a chairman of a tribunal must not allow to happen, is for that to happen in secret, in the confines of the retiring room. He may speak in the presence of the parties of facts which he knows of because of his experience provided the parties have an opportunity of dealing with those facts and making comments on them. But it seems to me contrary to the rules of natural justice to allow a tribunal to rely on those facts without the parties having had an opportunity to deal with them.”

19.  In the present case the tribunal’s knowledge of Dr G’s previous reports was in the nature of evidence which should have been disclosed to the parties. The tribunal relied upon the facts as to what Dr G had said in other cases and the conclusions reached by tribunals (most likely involving some of the same tribunal members) in those cases as to the merits of Dr G’s reports; views which were no doubt reached by weighing Dr G’s opinion against other evidence in those cases. 

20. The tribunal’s concerns about the opinions of Dr G appear to have played a significant role in its decision.  The evidence was finely balanced. Only two out of the three tribunal members found the claimant’s evidence persuasive. The claimant had not adduced any corroborative evidence as to her mobility difficulties. The tribunal had to choose between the evidence of the claimant and of Dr G.  At paragraph 6 of the statement of reasons the tribunal gave two reasons for rejecting Dr G’s opinion.  One was the tribunal’s previous experience of his reports. The other was the tribunal’s experience of chronic fatigue syndrome.  The last sentence of paragraph 6 states that the tribunal did not accept Dr G’s opinion for “these reasons”, which is a clear reference to both reasons. 

21. I do not accept Ms Wright’s submission that disclosure of the tribunal’s concerns could have served no purpose. Mr Cooper accepts that it would not have been realistic for the Secretary of State to have obtained details of the other cases in which the tribunal members had seen Dr G’s reports, nor the reports themselves.  But that does not mean that there would have been nothing that the Secretary of State’s representative could have said if the tribunal had raised the matter. She might have asked for an adjournment in order to obtain comments from Dr G regarding the tribunal’s concerns.  The tribunal might have refused that request, but one cannot know.  She might have sought to persuade the tribunal that, in the absence of material which the Secretary of State could comment upon as to Dr G’s other reports, the tribunal should disregard its previous experience. She might have reminded the tribunal of the requirement to consider the evidence as a whole and she might have sought to persuade it that, despite the tribunal’s concerns, there were other aspects of Dr G’s report which tended to support his opinion and contradict the evidence of the claimant.  It is possible that she could have elucidated parts of the report which the tribunal found illegible.  It is impossible to know what the outcome would have been had the Secretary of State been afforded an opportunity to comment, but it cannot be said that it could not realistically have made any difference to the outcome.

22. I do not know at what stage in the tribunal’s determination any of its members became aware of their concern about Dr G’s reports.  If it occurred before or during the hearing, then there was no excuse not to put the matter to the Secretary of State’s representative.  It is possible however that the issue did not arise until the tribunal discussed the case after the hearing had concluded.  If the parties remained in the building in order to receive the decision, they could have been recalled to deal with the issue.  If they had left, then the tribunal should have considered whether to reconvene in order to allow the Secretary of State to deal with the point.  That might have been difficult to organise and would have led to delay.  The tribunal may have decided it was sufficient to give the parties an opportunity to deal with the issue in writing. Alternatively the tribunal could have recognised that it would be unfair for it to proceed to a determination and directed a fresh hearing before a different tribunal. 

23. Despite the practical difficulties that may have faced the tribunal, I conclude that it was an error of law for the tribunal to have relied of its previous experiences of Dr G’s reports without putting this to the Secretary of State’s representative.

24. In the light of my conclusion that the Secretary of State’s representative was present at the hearing, it is not necessary for me to decide what the position would have been had he not been represented.  As the issue was addressed by the parties’ representatives, I consider that it is appropriate for me to make some general observations. In general a party which fails to attend a hearing will be taken to have waived the right to comment on matters raised at a hearing.  It is a regular occurrence at First-tier Tribunal hearings that a claimant brings further medical evidence to the hearing which the Secretary of State has not previously seen.  It would lead to enormous frustration, delay and expense if on each such occasion the tribunal was obliged to adjourn to enable the Secretary of State to comment.  In most cases it would not be consistent with the overriding objective to do so.  There may be cases in which evidence is presented at a hearing which is so radically different from that which an absent party could have expected that fairness requires the tribunal to adjourn. See for instance Basildon District Council v AC (HB) [2011] UKUT 16 (AAC). The tribunal must decide what fairness requires in the circumstances of each case. 

25. I also observe that, although the underlying principles of natural justice apply equally to all parties, different practical and factual considerations may arise where a claimant fails to attend a hearing.  The choice made by a claimant will generally be given considerable weight, but a claimant cannot necessarily be assumed to understand the importance of being present at a hearing or otherwise to have made an informed choice in the same way as the Secretary of State is able to.  There is a substantial body of Upper Tribunal case law addressing the circumstances in which a tribunal should consider adjourning to enable the attendance of a claimant who has opted for a paper determination or failed to attend a hearing, but I do not need to examine that for the purposes of this appeal.

 

Conclusions

26. In the light of my finding as to the tribunal’s error of law in this case, the appeal is allowed. 

27. Both parties agreed that, in the event that I allow the appeal, it should be remitted to a different tribunal for reconsideration. I agree that this is the correct course. There will need to be a fresh evaluation of the evidence which involves the expertise of a medical member.

 

 

 

 

Signed on the original Kate Markus QC

on 19 June 2015 Judge of the Upper Tribunal