Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Upper Tribunal case No.  CI/1215/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Mr. E Mitchell, Judge of the Upper Tribunal

 

 

Decision:  The decision of the First-tier Tribunal (3 June 2013, Nottingham, file reference SC 045/12/03104) involved the making of an error on a point of law. It is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the First-tier Tribunal for rehearing. Directions for the rehearing are at the end of these reasons.

 

REASONS FOR DECISION

 

Introduction

 

1. A Tribunal’s record of proceedings is an important thing, for both the parties and the Tribunal itself. No doubt, this is why the Senior President of Tribunals has given a Practice Statement, relating to social security and child support cases, requiring it to be preserved.

 

2. On the face of it, the Practice Statement contains a lacuna. Its requirement to preserve a record of proceedings ceases six months after the First-tier Tribunal gives its decision. That is so even if a party is still waiting for the Tribunal to produce written reasons for its decision. I decide that, despite this, the Tribunal is obliged to preserve the record of proceedings until the statement is issued. That did not happen in this case.

 

3. This case also concerns the nature of a final, but time-limited, disablement assessment for the purposes of industrial injuries benefit. Once the assessed period has come to an end, a fresh claim is normally required in order to re-obtain benefit. The DWP should not in these circumstances ask claimants to complete change of circumstances forms. That would have been the correct response when section 47 of the Social Security Administration Act 1992 was in force, which gave continuing effect to a time-limited final assessment, but section 47 was repealed by the Social Security Act 1998. 

 

Background

 

4. This case has a long history, beginning in 1970. In that year, Mr T suffered an industrial injury. A metal plate fell on him, fracturing his pelvis and right femur, and he claimed industrial injuries benefit. Following a number of provisional assessments, in 1972 a lifetime assessment of loss of faculty as a result of the accident was made. This assessed disablement at 7%.

 

5. In 2006, Mr T asked the Department for Work & Pensions to look again at his disablement assessment. On 26^th January 2007, the Secretary of State superseded the 1972 decision. He decided that Mr T’s disablement for industrial injuries purposes was 15% (increased to 20% by the rounding-up rule in section 103(3) of the Social Security Contributions and Benefits Act 1992 (“SSCBA 1992”). This was a provisional assessment having effect until 22^nd January 2008.

 

6. Since Mr T’s assessed disablement was greater than 14%, he was entitled to industrial injuries benefit in the form of disablement benefit (s.103(1) SSCBA 1992).

 

7. Following another provisional assessment, in December 2009 the Secretary of State made a final but time-limited disablement assessment decision of 15% for the period 23^rd January 2010 until 22^nd January 2012. This decision relied on the report of a DWP medical practitioner which said “a date final is suggested as any ongoing disability beyond this point will be due to constitutional factors”.

 

8. I suspect Mr T did not realise that the 2009 decision, while time-limited, was also a final assessment. However, the 2009 decision letter, while it could have been clearer on the point, does state that Mr T’s disablement assessment was both final and related to a definite period. The letter also informed Mr T of his rights to challenge the decision. It would, however, have been far better though – and in accordance with good administration – if this letter had clearly stated that Mr T’s disablement benefit payments would stop at the end of the assessment period.  

 

9. In any event, Mr T did not appeal the December 2009 decision. But he did contact the DWP when his disablement benefit stopped in January 2012. The DWP sent Mr T an industrial injuries disablement benefit change of circumstances form to complete.

 

10. On 8^th February 2012, the DWP received Mr T’s completed form. He wrote that his condition had “slowly got worse” since he was first awarded industrial injuries benefit.

 

11. The DWP arranged for Mr T to have a medical examination on 8^th March 2012. Having recorded clinical findings, the examiner then ticked the ‘No’ box in response to this question:

 

“Does the evidence listed in the B18 lead you to conclude that the effects of the accident or disease have changed (improved or worsened) since the assessment under consideration was made or have continued for longer than was allowed for in that assessment?”

 

12. The reasoning section of the report states:

 

“Mr [T] has widespread osteo-arthritis, affecting his hands, knees and back. It is likely the spinal degenerative condition is aggravating his back pain rather than the injury he had to his back pelvis and femur 40 odd years ago”.

 

13. On 13^th March 2012, a DWP decision-maker made the decision under appeal. The decision notice says the decision on Mr T’s application was “not to supersede”. The reason was that medical advice showed Mr T “had suffered no loss of faculty as a result of the accident, as there has not been a relevant change of circumstances since that decision was made”. That must be a reference to the 2009 decision to make a time-limited but final assessment of disablement.

 

14. Mr T appealed to the First-tier Tribunal (“the Tribunal”). His letter of appeal relied on his disablement assessments since 2006, all of which found 15% disablement. These set a “precedent”, he argued. Mr T also complained that the DWP never told him that the 2009 disablement assessment would result in his benefit stopping in 2012.

 

15. The Tribunal heard and refused Mr T’s appeal on 3^rd June 2013. The decision notice states “from 08/02/2012 there is no persisting loss of faculty resulting from the accident”. Within the Tribunal’s appeal bundle is a piece of paper which says “the record of proceedings has been digitally recorded”.

 

16. I have looked carefully at the information notes accompanying the Tribunal’s decision notice. They do not mention Mr T’s right to a copy of the record of proceedings. I was surprised by this. I had thought this information was included in the information notes but it is clearly absent from these notes.

 

17. Mr T promptly wrote to the Tribunal stating that he wished to appeal and so wanted a statement of reasons. The Tribunal received his letter on 19^th June 2013. Unsurprisingly, Mr T did not request a copy of the record of proceedings.

 

18. It was not until 20^th January 2014 that the Tribunal issued its statement of reasons (signed by the tribunal judge on 17^th January 2014). So Mr T had to wait over seven months. While the papers show the tribunal judge was sent a number of reminders, there is no explanation for the delay.

 

19. The statement of reasons suggests the Tribunal appreciated any supersession application by Mr T was pointless. In the circumstances of this case there was no way a supersession of the 2009 decision could have taken effect before 9^th February 2012 (when the disablement benefit award ceased). What is less clear is the Tribunal’s understanding of the legal nature of the appeal before it.

 

20. The Tribunal said that, in reality, Mr T was “saying that the decision in December 2009 was made by the Secretary of State under a mistake as to a material fact”. But that implies a supersession appeal which the Tribunal had already discounted. In any event, the Tribunal said the issue was “merely one of causation”, that is whether Mr T had any ongoing loss of faculty as a result of his industrial injury.

 

21. My understanding of the Tribunal’s analysis of that ‘causation’ issue was that, since 2007, DWP medical advisers had made “silent offsets” for constitutional factors. In reality, the advisers had already taken account of constitutional factors for loss of faculty – unrelated to the industrial accident – but had not written them down. That is why, all of a sudden, it appeared to Mr T that he was assessed as not being disabled by his accident. The Tribunal also said that the case was “really about the Appellant’s knee”, not his back. The reality was that his injured knee “would first get better due to surgery and then deteriorate due to constitutional factors”.

 

The Upper Tribunal’s attempts to obtain the Tribunal’s record of proceedings

 

22. On 14^th February 2014, the First-tier Tribunal received Mr T’s letter of appeal. This contained allegations about the conduct of the hearing. Mr T wrote that, following a short adjournment, a clerk said he could go home. The Tribunal had made its decision. Mr T said he had to insist on re-entering the hearing room in order to put his case.

 

23. Mr T also criticised the Tribunal for speculating on the reasoning of the 2007 and 2009 medical advisers. He also strongly disputed that the case was only about his knee, pointing out that his original injury was to his pelvis and right femur and left him hospitalised for five months.

 

24. A district judge of the First-tier Tribunal granted Mr T permission to appeal to the Upper Tribunal stating “given the issues arising and their complexity, it is appropriate that permission is given”.

 

25. In the usual way, the Tribunal supplied its papers to the Upper Tribunal. However, the record of proceedings was not included. On three occasions, Upper Tribunal staff emailed staff at the Birmingham Appeals Service Centre to request a copy of the recording. There was no response to any of the emails.

 

26. I then instructed staff to email the head of the Birmingham Appeals Service Centre to request the record and, if it was not available, a reason why. The email was copied to the regional First-tier Tribunal judge’s personal assistant. A delivery manager responded saying the Centre had no record of the Upper Tribunal requesting the record of proceedings. Well, three requests were made. I have seen the emails. The manager also said the Centre held no files for Mr T, everything was sent to the Upper Tribunal, which meant it did not have the record of proceedings. The Upper Tribunal does not, and never has had, the record. What a waste of time this has been.

 

27. I believe it is more likely than not that the record was destroyed once six months had passed from the date of the Tribunal’s decision. I can think of no other plausible explanation.

 

The absence of a record of proceedings

 

Legal framework

 

28. The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (“the Rules”) do not expressly require the Tribunal to make and keep a record of proceedings.

 

29. In 2008, the Senior President of Tribunals issued a “Practice Statement on Records of Proceedings in Social Security and Child Support cases in the Social Entitlement Chamber”. This provides:

 

“1. In this Practice Statement “social security and child support case” has the meaning given in rule 1(3) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. 

 

2. A record of the proceedings at a hearing must be made by the presiding member, or in the case of a Tribunal composed of only one member, by that member. 

 

3. The record must be sufficient to indicate any evidence taken and submissions made and any procedural applications, and may be in such medium as the member may determine. 

 

4. The Tribunal must preserve –

a. the record of proceedings;

b.  the decision notice; and

c. any written reasons for the Tribunal’s decision for the period specified in paragraph 5. 

 

5. The specified period is six months from the date of –

 

a. the decision made by the Tribunal;

b. any written reasons for the Tribunal’s decision; 

c. any correction under Rule 36 of the above Rules;

d. any refusal to set aside a decision under Rule 37; or

e. any determination of an application for permission to appeal against the decision, or until the date on which those documents are sent to the Upper Tribunal in connection with an appeal against the decision or an application for permission to appeal, if that occurs within the six months.

 

6. Any party to the proceedings may within the time specified in paragraph 5 apply in writing for a copy of the record of proceedings and a copy must be supplied to him.” 

 

30. So the presiding member has to make the record but the Tribunal has to keep it. Since the record may be kept in any medium (paragraph 3), recording the proceedings on a disc or tape is permitted. But that means a copy of the disc or tape, since it embodies the record, must be supplied on request in order to comply with the practice statement.

 

31. By section 3(4) of the Tribunals, Courts and Enforcement Act 2007, “the Senior President of Tribunals is to preside over both of the First-tier Tribunal and the Upper Tribunal”. By section 2(3) of that Act, “a holder of the office of Senior President of Tribunals must, in carrying out the functions of that office, have regard” to a number of matters including “(b) the need for proceedings before tribunals (i) to be fair”.

 

32. Section 23(1) of the Tribunals, Courts and Enforcement Act 2007 empowers the Senior President to issue practice directions “as to the practice and procedure of the First-tier Tribunal”.

 

33. The Practice Statement does not require the record and other paragraph 4 items to be kept for ever. Paragraph 5 connects the preservation period with the steps involved in challenging Tribunal decisions. The events listed reflect the chronology of a challenge to a Tribunal decision. The record must be preserved for six months from any of those events. Only one will always occur, the making of a decision. If nothing else relevant happens, the duty to preserve, on the Statement’s express wording, disappears six months’ later. But, if something does happen, such as written reasons for a Tribunal’s decision, the clock starts ticking again and the record must be preserved for another six months.

 

34. Unsurprisingly, the Practice Statement assumes the Tribunal will act reasonably promptly in discharging its post-decision obligations. The primary time-limit for requesting a statement of reasons is one month from the issue of the Tribunal’s decision notice (rule 34(4)). Rule 34(5) requires the statement of reasons to be sent to the parties within a month of the request or “as soon as reasonably practicable after that date”. The Senior President must have thought it inconceivable that there could be a delay of many months in producing a statement of reasons, so that before they had been produced the requirement to preserve the record had ceased.

 

35. Reading the Practice Statement literally, the requirement to preserve ends six months after the Tribunal’s decision if, as in this case, no statement of reasons is produced by then. An outstanding request for a statement of reasons makes no difference. The irony is that preserving the record is especially important where there is a long delay between decision and statement of reasons.

 

36. Often, an appellant needs the record of proceedings to make an informed decision whether to appeal. For example, the appellant may argue that his oral evidence was ignored or his oral arguments not addressed in the Tribunal’s reasons. Without a record of proceedings, it is difficult to see how the appellant might make good such an argument.

 

When the record of proceedings needs to be kept for longer than apparently required

 

37. It is not the parties’ fault if the Tribunal takes so long to produce a statement of reasons that the express duty to preserve the record of proceedings disappears. In my view, an outstanding request for a statement of reasons places a duty on the Tribunal to keep the record of proceedings until the reasons are issued. At that point, Practice Statement expressly requires the record to be kept for at least another six months.

 

38. There is more than one route to that conclusion including: the legal nature of the Practice Statement, the requirements of Article 6 of the European Convention on Human Rights and the overriding objective of the First-tier Tribunal’s procedural rules.

 

39. The Practice Statement is not a Practice Direction. If it was it would say so. Some uncertainty has been expressed as to the legal status of the Practice Statement (see MK v Secretary of State [2012] UKUT 293 (AAC)). But I think its status is clear. The Practice Statement must be issued under powers that are inherent in the Senior President by virtue of the holder of that office presiding over the First-tier Tribunal (section 3(4) of the 2007 Act). There is no other possible legal basis that I can identify. The express provision made for Practice Directions may affect the breadth of the powers under section 3(4) but I have no doubt they support the issue of this Practice Statement which I note imposes burdens only on the Tribunal and not on any parties to an appeal.

 

40. Of itself, the fact that the Senior President presides over the First-tier Tribunal has no immediate legal consequence. That must wait until the President does something in the exercise of the powers, which the President has done here in the form of a Practice Statement. It is clearly within the powers of a presiding judge to regulate how proceedings in hearings are recorded.

 

41. By section 2(3) of the 2007 Act, “a holder of the office of Senior President of Tribunals must, in carrying out the functions of that office, have regard” to a number of matters including “(b) the need for proceedings before tribunals (i) to be fair”. In issuing the Practice Statement, the Senior President was carrying out the functions of his office. His obligation to have regard to the need for proceedings to be fair is relevant in interpreting the Practice Statement. The Senior President cannot possibly have intended to be so unfair as to deprive parties of an important tool for exercising their appeal rights simply because the First-tier Tribunal has been lax in complying with its obligation to produce a statement of reasons.

 

42. Article 6(1) of the European Convention on Human Rights guarantees the right to a fair hearing in the determination of a person’s civil rights. The First-tier Tribunal is required to act compatibly with the rights conferred by article 6, within the terms of section 6 of the Human Rights Act 1998. It is now well-established that social security entitlements are civil rights for the purposes of article 6 (see, for example, Miller v Sweden (2005) 42 EHRR 1155).

 

43. Article 6 does not guarantee a right of appeal against a first instance adjudication. However, where domestic law provides a right of appeal, the appeal proceedings will be treated as “an extension of the trial process” and subject to article 6(1) (Delcourt v Belgium (1970) 1 EHRR 355). It is

 

44. Miller v Sweden (2005) 42 EHRR 1155 was a disability benefits case about the content of article 6 rights in second-tier proceedings. While it was directly concerned with whether an oral hearing was necessary to comply with article 6, the Court took into account “the manner in which the appellant’s interests are actually presented and protected in the appeal”. This illustrates the perhaps rather obvious point that the first-tier tribunal has an obligation under article 6 not to prejudice a party’s exercise of an onward right of appeal. Destroying a record of proceedings before a statement of reasons has been produced clearly causes significant prejudice and, in some cases, may be fatal.

 

45. Finally, rule 5(1) confers power on the First-tier Tribunal to “regulate its own procedure”. That obviously includes procedure at a hearing. The wording is sufficiently broad, in my view, to encompass recording what happens at a hearing and keeping the record thereafter. Rule 5(1) is probably the ultimate source of the function of recording proceedings at a hearing and preserving the record thereafter.

 

46. The overriding objective of the rules “is to enable the Tribunal to deal with cases fairly and justly” which includes “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings” (rules 2(1), (2)). In exercising any power under the Rules or interpreting any rule, the Tribunal must seek to give effect to the overriding objective. And so this applies to keeping a record of proceedings. Since it is self-evidently unfair in all cases to destroy a record before a statement of reasons has been produced, the overriding objective requires the record to be kept for the additional period mentioned above.

 

Why the First-tier Tribunal erred in law

 

47. I have found it is more likely than not that the First-tier Tribunal destroyed this record of proceedings six months after its decision. That was an error of law since it was obliged to keep the record until at least one month after the statement of reasons was issued.

 

48. This was a material error of law. It has made it impossible fairly to adjudicate on Mr T’s argument that the First-tier Tribunal made up its mind before he had finished presenting his case. As a result, the First-tier Tribunal’s decision is set aside.

 

49. The Secretary of State did not support the appeal. However, his submissions missed the point. I was referred to the case law about the consequences of a long delay between decision and statement of reasons. That was not the issue in this case. The issue was the legal ramifications of the First-tier Tribunal destroying the record of proceedings before Mr T had been issued with the Tribunal’s statement of reasons.

 

What happens next? What is this appeal really about?

 

50. This appeal will now go back to the First-tier Tribunal. For that purpose, I need to clarify the nature of this case.

 

51. Firstly, I point out that, as explained above, this could never have been an appeal against a refusal to supersede.

 

52. Mr T’s 2009 disablement assessment decision must have included a finding that he would not continue to suffer from a relevant loss of faculty beyond 9^th February 2012. It must have included such a finding because that is what the law required. Under Schedule 6(1) to the SSCBA 1992, the period of disablement assessment cannot be limited to a definite date unless, after that date, a person will not be expected to continue to suffer from a relevant loss of faculty.

 

53. As from 9^th February 2012, Mr T was not entitled to a disablement pension. He no longer met the requirement in section 103(1) SSCBA 1992 that he “suffers as the result of the relevant accident from loss of physical or mental faculty such that the assessed extent of the resulting disablement amounts to not less than 14 per cent”.

 

54. The findings embodied in the 2009 decision are not conclusive for the purposes of any subsequent decision on a new claim for industrial injuries benefit. They would only be conclusive if regulations to that effect had been made and they have not (section 17 Social Security Act 1998).

 

55. The position was different before the repeal of section 47 of the Social Security Administration Act 1992 (by the Social Security Act 1998) because that gave lasting effect to a final definite-date disablement assessment. After that date, a claimant who sought to re-obtain industrial injuries benefit would need to secure a review of the disablement assessment decision. From the appeal papers, I suspect a form of DWP institutional memory may have influenced their approach to Mr T’s case. The DWP acted as if section 47 were still on the statute book. It is not and as a result it is wrong to supply to claimants whose final definite-date disablement assessment has expired with a change of circumstances form. Generally, a new claim is required.

 

56. I therefore agree with the view expressed at para. 2.544 of Volume III of the Social Security Legislation Encyclopaedia (Sweet & Maxwell) that, in these circumstances, (a) a new claim is required, and (b) the decision of a Tribunal of Commissioners in R(I) 5/02 is now of only historical interest to the extent that it is concerned with the operation of section 47 of the Social Security Administration Act 1992.

 

57. So the first issue for the new tribunal is whether Mr T’s completed 2012 change of circumstances form amounted to a claim. I would be surprised if the Secretary of State contested this but, if he does, it will be for the First-tier Tribunal to decide: see R(IS) 6/04.

 

Directions

 

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, I direct as follows:

 

(1)   An oral rehearing must be held by the First-tier Tribunal. The Tribunal’s membership must not include anyone who was a member of the Tribunal whose decision has been set aside.

(2)   Mr T is reminded that the law prevents the tribunal from taking into account circumstances not obtaining at 13 March 2012, when the decision under appeal was taken.

(3)   Within one month of the date on which this decision is issued, the Secretary of State must supply the First-tier Tribunal with a supplementary submission setting out (a) their understanding of the legal nature of this appeal, and (b) whether they dispute that Mr T’s 2012 supply of a change of circumstances form amounted to a claim for benefit.

(4)   If Mr T has any further written evidence or argument that he wishes to put before the tribunal, it should be sent to the First-tier Tribunal’s office within one month of the date this Decision is issued. Of course, he remains entitled to give evidence and put forward arguments at the re-hearing.

 

 

 

 

 

(Signed on the Original)

E Mitchell

Judge of the Upper Tribunal

9 September 2015