Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/5300/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: M R Hemingway: Judge of the Upper Tribunal

Decision: The decision of the First‑tier Tribunal sitting at Bradford on 10 July 2014 under reference SC950/14/00470 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 10 July 2014.

(2) The hearing shall be one in relation to which the appellant has been given a reasonable opportunity of fully participating in. That might involve, for example and where appropriate, consideration of the holding of a domiciliary hearing or a hearing at a particular location familiar to the appellant (perhaps a community building or a doctor’s surgery close to her home) or a hearing in which she is able to attend by telephone. 

(3) If the parties have further written evidence, in particular medical evidence, to put before the new tribunal, this should be sent to the appropriate HMCTS office within one month of the issue of this decision.  Any further evidence, to be relevant, will have to relate to the circumstances as they were as at the date of the original decision of the Secretary of State under appeal (10 December 2013). 

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

(5) The new tribunal must consider all aspects of the case, both fact and law, entirely afresh.

(6) 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. 

REASONS FOR DECISION

The issue raised by this appeal

1. The issue raised by this appeal is whether the appellant is entitled to have her previous award of disability living allowance renewed from 7 March 2014, and, if so, in respect of which components, at what rate or rates and for what period of time. 

The background

2. The appellant was born on 19 May 1966.  She has health difficulties which include agoraphobia, asthma, depression, hypertension, anxiety and angina.  She made a previous claim for disability living allowance which, ultimately, and after a successful appeal, led to an award of the lower rate of the mobility component and the middle rate of the care component of disability living allowance from 7 March 2012 to 6 March 2014.  The award of the middle rate of the care component was on the basis of night‑time needs.  The appellant, within the currency of the previous award, applied for her award to be renewed.

3. The respondent obtained a medical report from the appellant’s GP which indicated that she had the above health problems, that she would experience panic attacks and that her agoraphobia was severe and had been so since 2003.  The report is dated 26 November 2013.  The respondent decided, on 10 December 2013, to renew the award but on the basis that she was entitled to the lower rate of the mobility component only from 7 March 2014 to 6 March 2019.  The appellant sought to challenge the award but it was confirmed on mandatory reconsideration and she appealed to the First‑tier Tribunal (F‑tT). 

The tribunal’s decision

4. The appellant, whom it seems did not have a professional representative at that stage, indicated that she wanted her appeal to be decided “on the papers”.  In a short explanatory letter she stated that she did not feel she could attend the hearing in person because she has panic attacks in such situations and does not like going to strange places.  In this context it is to be noted that the GP report of 26 November 2013 did contain the observation that her severe agoraphobia caused her great difficulty in attending appointments and did say that “if you need to see her then a visit may be better”.  That remark appeared to be directed towards the respondent rather than to any tribunal but it was before the F‑tT.

5. The F‑tT decided it would be appropriate to determine the appeal without a hearing. By way of explanation it said this:

“ 2. The Appellant opted to have her appeal heard on the papers i.e. without an oral hearing; she indicated that she would be unable to attend an oral hearing. 

The Tribunal considered all the available evidence and decided that there was sufficient evidence to make a reasoned decision without the need for any adjournment and without the need for any further evidence, medical or otherwise. 

In deciding to proceed on the papers the Tribunal considered both the overriding objective in rule 2 and the provisions of rule 27(1) of the Tribunal Procedure Rules 2008.”

6. The F‑tT then went on, in its statement of reasons for decision (statement of reasons), to consider the evidence and to explain its view that there was only entitlement to the lower rate of the mobility component.  In so doing it observed that the agoraphobia was clearly the appellant’s main problem and reminded itself that her GP had described the condition as being severe.

The proceedings before the Upper Tribunal

7. I granted the appellant permission to appeal to the Upper Tribunal because I thought it arguable that the F‑tT had erred in failing to consider other possible options before deciding the appeal on the papers and in failing to adequately explain why it was making an award, on renewal, which differed from the previous award (see R(M) 1/96). 

8. Ms A Woods, who now acts on behalf of the Secretary of State in connection with this appeal to the Upper Tribunal, supports the appeal.  She says it was clear that the appellant would have liked an opportunity to take part in the proceedings but that she felt unable to do so because of her mental health difficulties.  Against that background she submits that the F‑tT did err in law by not considering an adjournment (presumably with a view to making some different arrangement for the appellant’s participation at a future hearing) and in failing to consider the content of the Senior President of Tribunals Practice Direction of 30/10/08 (Practice Direction (First‑tier And Upper Tribunals; Child Vulnerable Adult And Sensitive Witnesses)).  She draws attention to the fact that the Practice Direction defines a “sensitive witness” as an adult witness where the quality of 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 and points out that it requires a tribunal to consider how to facilitate the giving of any evidence by a sensitive witness.  She says that the Practice Direction was simply not considered by the F‑tT. 

9. In the above circumstances Ms Woods invites me to set aside the F‑tT’s decision and remit for rehearing by a differently constituted F‑tT with appropriate directions for its determination.  She does not request an oral hearing before the Upper Tribunal. 

10. It is evident that the appellant has, since the hearing before the F‑tT, been able to obtain professional representation.  She is now represented by Mr S Hodgson of an organisation known as Hull Advice.  He has, on her behalf, welcomed the respondent’s support for the appeal, said that he has no further comments to make other than that and has indicated he does not seek an oral hearing before the Upper Tribunal. 

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

Discussion

12. It is right that the appellant had asked for her appeal to be decided on the papers.  It is also true, though, that she had, in her letter accompanying her request, demonstrated that she would have liked to have participated in the hearing but felt, as a result of her mental health difficulties, she could not do so.  It is also right to say that the F‑tT had evidence which it appeared to accept which indicated she suffered from severe agoraphobia and that it had a medical report from her GP suggesting, that if she had to attend appointments, this would be better achieved by way of a visit to her home.

13. In considering whether or not to proceed to determine the appeal on the papers, the F‑tT was required to consider the content of rules 2 and 27 of the Tribunal Procedure (First‑tier Tribunal) (SEC) Rules 2008.  It certainly made reference to both of those rules but did not explain, in any real detail, the thought processes which led it to conclude that, in light of what is stated in those rules, proceeding was the right course of action.  From what it said it appeared to base its decision to proceed largely if not exclusively on the basis that it had what it considered to be “sufficient evidence to make a reasoned decision”. 

14. I accept it will sometimes be the case that a brief explanation as to why a tribunal is proceeding to decide an appeal on the papers will suffice.  However, in my view, this was not such a case and more was required of the tribunal.  Indeed, I consider that it made a number of errors in this regard.  Firstly, it did not factor into its considerations the appellant’s wish to participate in the proceedings but for her illness.  It did not take into account, in considering the reasonableness of its chosen course of action, the medical evidence that she suffered from severe agoraphobia or the GP’s view that, in relation to appointments, home visits would be better.  It did not appear to give any consideration to alternative ways of approaching matters such as, for example, a domiciliary hearing or a hearing at a location familiar to the appellant (by which I mean a place other than an established hearing centre) or an adjournment to facilitate the appellant’s participation by telephone.  Such was, on the face of it, possible given that the appellant had provided both a landline and a mobile telephone number when completing her appeal form.  Further, the F‑tT did not consider the possibility (as Ms Woods very helpfully points out) that the appellant might fall within the definition of a “sensitive witness” such that it would be appropriate to consider possibilities such as evidence being given by telephone or by video link or other alternative means. Finally, and importantly in my view, it gave undue prominence to its view that it had sufficient evidence to make a reasoned decision.  That sort of formulation is often offered by tribunals by way of an explanation for proceeding without a hearing but it does, certainly if it appears to have been the sole or prominent consideration, suggest that other factors of relevance as contained in rule 2, such as the duty to ensure, so far as practicable that the parties are able to participate fully in the proceedings may have been lost sight of.  In any event, the presence of sufficient evidence to enable a reasoned decision to be made does not mean, of itself, that proceeding on the papers is fair and just.  I conclude, therefore, that the F‑tT did err in law.

15. I do consider the error to be material.  This is because it seems to me that the F‑tT’s ability to properly assess the strength of the appellant’s case was significantly compromised by its inability, as a result of the stance it took, to take oral evidence from her.  In this context she had provided quite limited information, particularly with respect to her care needs, in her completed renewal claim pack.  Nevertheless, there was medical evidence indicating she suffered from a range of different medical problems as outlined above.  It may be that the F‑tT would have been able to glean much relevant material from her had it had an opportunity to ask her questions and receive her answers.  In light of all of that it is, in my judgment, appropriate to set aside the F‑tT’s decision.  I also consider it to be appropriate for me to remit to a new and differently constituted F‑tT.  That is the course of action the respondent urges upon me and the appellant, through her representative, does not demur. In the circumstances I need not say anything more about the further basis upon which I granted permission. 

16. There will, therefore, have to be a new hearing before a new and entirely differently constituted F‑tT.  That hearing will take place in accordance with the directions I have set out above.  If the appellant remains keen to participate at a hearing then I hope one of the above options canvassed in my directions or some other appropriate means of achieving this may be found.  The appellant’s current representative may be able to assist in this regard by liaising with the tribunal.

17. The appeal, to the extent explained above and for the reasons set out above is allowed. 

(Signed on the original) 

M R Hemingway

Judge of the Upper Tribunal

Dated: 9 July 2015