Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CE/200/2015

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

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

This decision of the First-tier Judge is SET ASIDE and REMADE in the same terms, with such findings of fact as are necessary for the decision.

REASONS FOR DECISION

1    Both parties agree that the decision of the First-tier Tribunal (the Tribunal) should be set aside.  The Secretary of State has, however, put forward a ground additional to those I raised when giving permission to appeal with which I do not agree.  At the end of the day I have come to the conclusion that although there are errors of law, the evidence is clear enough for me to substitute my own decision to the same effect as that of the Tribunal, making the necessary findings of fact. 

2    The submissions for the appellant were made by her previous representative.  The current representative has not made fresh submissions and has not commented on the Secretary of State’s submissions.

3    The basic facts are that the appellant failed to score sufficient points on a Work Capability Assessment.  This meant that she did not have the limited capability for work which would enable her to remain on Employment and Support Allowance (‘ESA’).  She appealed and requested an oral hearing. Her Majesty's Courts and Tribunals Service arranged two hearings for her.  Shortly before the first hearing a Tribunal clerk telephoned the appellant to see if she still meant to attend, but she said she felt too unwell to do so and asked the Tribunal to proceed in her absence.  The Tribunal did not feel able to proceed.  It adjourned for medical records and re-listed the case for an oral hearing. On the day of the rearranged hearing, the clerk telephoned the appellant but was unable to reach her on the telephone number she provided.  The appellant failed to attend the second hearing.  The Tribunal decided it was in the interests of justice to proceed in her absence having consciously applied its mind to the relevant procedural rules.  I am unable to see any material error in their reasoning nor any unfairness in doing so. 

4    The grounds raised by the appellant’s previous representative related to whether the Tribunal had erred in law on regulation 29(2)(b) of the ESA Regulations 2008.  This allows the Tribunal to treat a claimant as having limited capability for work even though she does not score enough points to pass the Work Capability Assessment.  This sub-paragraph may apply where there would be a substantial risk to any person’s health if the claimant were not found to have limited capability for work.  The appellant’s representative submitted that the Tribunal came to the wrong answer on this regulation because (i) the appellant was not present at the hearing and could not counter the Tribunal’s views about the type of work/range of work for which she was suited as required by case law on the regulation; and (ii) in any event, the Tribunal erred in law by failing to consider relevant factors in the papers which might have led to a finding that there was a substantial risk to her health if she was required to look for work, to get to work, or be present at work premises if she found a job. 

5    I shall deal with (i) immediately. The appellant explained that when the clerk telephoned her, her mobile ‘phone must not have had any money on it, or it had run out of charge, or it must have been turned off.  None of these begins to explain why she did not attend the hearing, of which she was notified, let alone any error of law. 

6    In granting permission to appeal, I asked the Secretary of State to look at the question of how a Tribunal should proceed in circumstances such as those in the case.  There were gaps in the evidence which arose because the appellant absented herself from the hearing. How far did the Tribunal’s inquisitorial duty extend in the face of that absence?  In Kerr v Department for Social Development [2004] UKHL 23 [62, 63] Baroness Hale of Richmond’s opinion was that it would rarely be necessary to invoke the formal concept of burden of proof in social security cases but she also stressed the parties’ duty to assist the Tribunal.  If a party had not done all that she could reasonably do to provide evidence which lies within her purview, a tribunal would be entitled to determine an issue dependent upon that evidence against her.  On the other hand, at the end of the day, if the parties have played their parts and inconsistencies and ambiguities in the evidence remain, the Tribunal might need to fall back on the formal burden of proof.

7    I am content to accept the Secretary of State’s brief response on the points I raised:  the situation in this case falls far short of the kind of fault that would lead a Tribunal find against a party on a particular issue.  This is clear from paragraph 16 of Kerr:

16.  But there some basic principles which made be used to guide the decision where the information falls short of what is needed for a clear decision to be made one way or the other:

    (1)  Facts which may reasonably be supposed to be within the claimant's own knowledge are for the claimant to supply at each stage in the inquiry.

    (2)  But the claimant must be given a reasonable opportunity to supply them. Knowledge as to the information that is needed to deal with his claim lies with the department, not with him.

    (3)  So it is for the department to ask the relevant questions. The claimant is not to be faulted if the relevant questions to show whether or not the claim is excluded by the Regulations were not asked.

    (4)  The general rule is that it is for the party who alleges an affirmative to make good his allegation. It is also a general rule that he who desires to take advantage of an exception must bring himself within the provisions of the exception. As Lord Wilberforce observed, exceptions are to be set up by those who rely on them: Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107, 130.

8    The appellant was not asked any questions in the forms she filled in about her health conditions and how they affected her on her work or any education she had that might suit her for work.  Nor was she given any notice that the Tribunal needed this type of information in order to determine her case.  She really could not be said to have been uncooperative.

9    This does not, however, provide an answer to the representative's submission that the Tribunal erred in law in substance by finding (as it did) that the appellant would be able to do work in an office or shop.  Had the appellant attended, she could have explained why this was not the case.

10 In Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42 the Court of Appeal held that it was for the decision maker (or Tribunal) to assess the range or type of work which a claimant is capable of performing sufficiently to assess the risk to health either to the claimant or others.  Given that the decision maker and Tribunal will not know of actual positions or the nature of duties and location of jobs which might be available, nor have more  knowledge of the appellant’s background than is provided on the questionnaire filled in for the purposes of the WCA (the ESA50), or said during the face-to-face interview with the approved health care professional, or by any evidence they may choose to give on appeal to the Tribunal, the decision maker and Tribunal cannot be normally expected to identify employment with any great specificity.  This could well mean – and did mean, in Charlton - that the range of work was sufficiently identified when described in very general terms. Indeed, the Court of Appeal approved Commissioner (now Upper Tribunal Judge) Williams’ finding that Mr Charlton was capable of performing the kind of work -

‘...to which a person with no physical limitations, no qualifications, no skills and no experience might be directed…and that he could undertake straightforward and unstructured, unskilled work’.

11 The question, then, is whether the Tribunal was justified in finding as fact that the appellant could work in a back office or shop.  They found that there were no unusual circumstances in her position that would cause a substantial risk within regulation 29(2)(b).

12 The Secretary of State was puzzled at the Tribunal’s comment that there were no unusual circumstances in her position.  Perhaps this arose because the Tribunal had made a finding of fact that the appellant had ‘monthly blackouts due to anxiety’ though ‘she takes no medication and has had no referrals [for this]’. 

13 On the other hand, the Tribunal also found [21, 22, 23] that her own GP did not consider that any of the descriptors applied to her (apart possibly from one which is not material for the purposes of this decision), that this was consistent with the AHCP’s (approved health care professional’s) report and GP records, that she engaged in activities including driving a manual car, driving her 13 year old daughter to school, did housework, shopped at a supermarket (using a trolley, carrying bags and loading the car), attending school meetings and engaging with teachers. It concluded in [22, 27] that the appellant did not suffer from any functional impairment, physical or mental, which would prevent her from carrying out the descriptors. 

14 It is plain, therefore, that the Tribunal could not have intended to find as fact that the appellant had monthly blackouts, despite mentioning this evidence at [17].  Such a finding would be grossly at odds with the clear meaning of the other paragraphs cited and its overall decision. 

15 In my view, the only sensible way to categorise this statement is as a recitation of the appellant’s evidence.  This case shows, once again, the need for Tribunals to be very careful to distinguish between what it actually finds as fact, and that which is merely a recitation of evidence which is ultimately rejected. 

16 Had I interpreted [17] as a finding of fact, I would have amended it to read, as was no doubt intended, that [the appellant] said that she had blackouts, but that this was not accepted as fact in light of the medical evidence (which did not support such a finding) and the many activities she regularly performs which are inconsistent with such a finding, including driving and taking her daughter to school in the car.

17 The Tribunal does not explain why it thought the appellant could work in a back office or in a shop.  The Tribunal did, however, say that none of the descriptors were fulfilled, and intimated that her typical day disclosed activities and activity levels which were not consistent with the existence of risks within regulation 29(2)(b).  I would add that the appellant’s letters show that she is literate and that the appellant told the AHCP that she was able to use a computer, and I so find as facts.  On these findings, it is fair to conclude that the appellant would be able to work in a back office.  There was, moreover, nothing which would have prevented her from working in a shop, at least if a small shop.

18 As UT Judge White points out in NS v Secretary of State for Work and Pensions (ESA) [2014] UKUT 115 (AAC), the more obvious it is that regulation 29 does not apply, the easier it is to say why that is so.  In this case, the inapplicability of regulation 29(2)9b) followed inexorably from Tribunal’s reasoned rejection of the appellant’s evidence. 

19 The representative's final argument on regulation 29 relates to the appellant’s non-attendance:  had she been present, she could have explained why she could not work in an office or shop.  She told her representative that she was unfamiliar with modern technology because she has not worked in an office for 25 years and could not stand long enough because of chronic pain and had hurt herself in the past.  Of course, this new evidence provides confirmation that office work was within the range of employment suitable for the appellant.  The Tribunal’s general view on the range of employment was, therefore, correct, despite the appellant’s absence.  Insofar as the appellant says she would be unable to work in an office, the findings of the Tribunal undermine her assertions. 

20 This leaves the Secretary of State’s submission that the Tribunal made an error of law because it overlooked guidance given to First-tier Tribunals in The Senior President of Tribunals Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses when it decided to proceed in the appellant’s absence. 

21 The Secretary of State’s argument is that the appellant was a vulnerable adult for the purposes of the Practice Direction, which governs the circumstances and manner in which vulnerable adults (amongst others) may give evidence to First-tier Tribunals and the Upper Tribunal. 

22 There are a number of problems with the submission which make it untenable in this case.  The first five problems are

(i)       that the appellant elected to have an oral hearing, as was her right.  Although she was content for the previous Tribunal of 10 June 2014 to go ahead in her absence (owing to illness), the Tribunal plainly thought that it would be unfair to do so and directed that the appeal be relisted.  This was in accordance with her original election which was never formally changed;

(ii)      The Tribunal did not ‘require’ the appellant to attend.  It simply honoured her election. 

(iii)     Statistically, more than twice as many appeals are successful with a hearing, and disability and incapacity for work appeals form a very large part of a Tribunal’s work.  The comparative success rates are well known to tribunals, and this information appears in the enquiry form appellants fill out to pursue an appeal.  Attendance at an oral hearing is usually the best way for claimants to get their points across, and tribunals inevitably consider very carefully whether an appellant who has opted for a determination on the papers would be better served by giving oral evidence. This is not only a matter of the Tribunal’s overriding objective to deal with cases fairly and justly (rule 2, Tribunal Procedure (First-tier Tribunal)(SEC) Rules 2008) but also a concomitant of its inquisitorial and enabling roles. 

(iv)    If the Secretary of State’s argument were to be carried through to its conclusion, the Practice Direction would impose on a Tribunal dealing with such a person a duty consciously to consider the Practice Direction – on pain of error of law - even though it would consider substantially the same range of considerations in pursuance of its duties under the Procedure Rules, common law and ECHR law on fairness.  This would mark the triumph of form over substance.

(v)     The appellant’s complaint was not, in any event, that she was required to give evidence, but that she was not able to give evidence because the Tribunal chose to proceed in her absence on 15 September 2014;

23 In addition to these difficulties, it seems to me that the Secretary of State’s representative interpretation of the provisions in issue is problematic following the amendments to the Safeguarding Vulnerable Groups Act 2006 made by the Protection of Freedoms Act 2012. 

24 At the time the Practice Direction was formulated, the Safeguarding Vulnerable Groups Act 2006 defined ‘vulnerable adult’ to mean a person who had attained the age of 18 and who fell within 10 widely drafted categories (section 59).  These included, for example, a person in residential accommodation or sheltered housing, receiving domiciliary care, in lawful custody, receiving certain welfare services, requiring assistance in the conduct of his own affairs (by reason of age, health or any disability), and receiving any form of health care.  The definition reflected the assumption that individuals who fell within any of those categories were, because of that very fact, vulnerable.  (This could mean, taking an extreme example, that a person receiving repeat prescriptions for aspirin from their GP would be a vulnerable adult).  But the main thing to notice is that ‘vulnerable adult’ was a free-standing concept. 

25 Section 59 was repealed for England and Wales by the Protection of Freedoms Act 2012. It was replaced by a definition which links vulnerability directly to the performance of certain activities for, or in relation to, that adult.  So, section 60 defines ‘vulnerable adult’ as meaning:

‘any adult to whom an activity which is a regulated activity relating to vulnerable adults by virtue of any paragraph of paragraph 7(1) of Schedule 4 is provided’. 

Paragraph 7(1) of Schedule 4 (introduced by section 66(2) of Protection of Freedoms Act 2012) then provides that

(1)  Each of the following is a regulation activity relating to vulnerable adults

(a) the provision to an adult of health care by, or under the direction or supervision of, a health care professional’

26   It now appears that it is the activity which governs the issue of who is vulnerable.  A Tribunal is not a regulated activity, and a person is not vulnerable in relation to it.  It is accordingly doubtful whether the linkage in the Practice Direction to the SVGA 2006 remains appropriate.

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 14 October 2015