Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/1123/2015

ADMINISTRATIVE APPEALS CHAMBER

Before: A. Rowley, Judge of the Upper Tribunal  

Decision:  I allow the appeal.  As the decision of the First-tier Tribunal (made on 10 June 2014 at Bexleyheath under reference SC168/13/01866) involved the making of an error in point of law, it is set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.  It is appropriate for me re-make the decision under section 12(2)(b)(ii) of the 2007 Act. 

My decision is that the claimant is entitled to an award of the lower rate of the mobility component and the highest rate of the care component of Disability Living Allowance from 18 May 2013 to 17 May 2015.

REASONS FOR DECISION

Introduction

1.    This is an appeal by the claimant from a decision of the Bexleyheath First-tier Tribunal dated 10 June 2014.  The tribunal upheld the decision dated 31 January 2013 of the Secretary of State for Work and Pensions to the effect that the claimant was entitled to an award of the lower rate of the mobility component and, because she satisfied the day-time conditions, the middle rate of the care component of Disability Living Allowance (“DLA”) from 18 May 2013 to 17 May 2015.  I granted permission to appeal to the Upper Tribunal.  The Secretary of State supports the appeal, in part on a ground additional to those on which I gave permission.

2.    The issue on this appeal is whether the tribunal erred in law in proceeding with the hearing of the appeal in the claimant’s absence.  In granting permission to appeal I observed that it was not apparent that the tribunal had considered (adequately or at all) the provisions of rules 31 and 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.  My decision is that its failure to do so amounted to an error of law.

3.    In this decision I also discuss the Secretary of State’s submission that, in deciding to proceed in the claimant’s absence, the tribunal erred because it failed to consider the guidance given to First-tier Tribunals in the Practice Direction (First-Tier and Upper Tribunals: Child, Vulnerable Adult and Sensitive Witnesses) which was issued by the Senior President of Tribunals on 30 October 2008.

Background

4.    The claimant, who was born in 1987, has a number of health conditions.  They include a long-standing history of mental health and behavioural disorders.  She had had an award of the lower rate of the mobility component and the middle rate of the care component of DLA, and made a renewal claim which was treated as effective from 18 May 2013.  Her case was that she was entitled to the higher rate of the mobility component.  She also said that she was entitled to the highest rate of the care component, as she satisfied not only the daytime conditions but also the night-time ones, primarily because she needed another person to be awake at night for a prolonged period or at frequent intervals to watch over her in order to avoid substantial danger to herself or others.

5.    There was evidence that the claimant suffered from depressive lows during which she could not leave her home, and that she had panic attacks.

The procedural history

6.    The procedural history of the claimant’s appeal to the First-tier Tribunal is important.

7.    On the enquiry form dated 19 June 2013 the claimant indicated that she did not want to have an oral hearing of her appeal.  The hearing was, accordingly, listed to be conducted on the papers on 9 September 2013.  Prior to the hearing the claimant sent a letter to the tribunal in the following terms:

“I am sorry I can’t attend court.  I find it hard to get out sometimes and I was worried if I said I was coming then was ill and didn’t turn up that it would affect my case.”

8.    The tribunal refused the claimant’s appeal, but that decision was set aside on 17 December 2013 by a District Tribunal Judge because the reasons were inadequate.  The District Tribunal Judge gave directions for the re-hearing.  It was directed that it should be an oral hearing, and that:

“The Appellant should attend the hearing as it is in her interests to do so.  She may be accompanied by a friend or relative if this will assist her.” 

9.    A hearing was listed to take place on 10 February 2014.  On that day the claimant telephoned the tribunal to say that she had been suffering from panic attacks, and had been unable to leave her house for the last few days.  She said that she was trying to get some medication to help her to deal with the attacks, but nothing had yet been sorted.  It was recorded that the claimant wanted it to be noted that she was “very sorry.”

10. The hearing was adjourned.  The tribunal judge directed that the next hearing was to be an oral hearing, and that the clerk was to obtain from the claimant’s GP (with the claimant’s consent) her medical records from 1 June 2012 to date.  In addition:

“The appellant is to attend the next hearing to give oral evidence and may be accompanied by a friend or relative if that will assist her.  If the appellant is unable to attend a hearing she may apply for a hearing in her own home.  If the appellant wishes to do this she should write to HM Courts and Tribunals Service requesting an out of centre hearing.  Any application for an out of centre hearing must be made within 14 days of the issue of this Notice.”

11. A hearing notice was sent out on 28 April 2014, informing the claimant that the hearing was to be at Bexleyheath on 10 June 2014.  This prompted a letter from the claimant, which was received on 15 May 2014.  It was in the following terms:

“… I have already told you I find it hard to get out, especially to unfamiliar places.  You said I could have the tribunal at my home and I sent a letter requesting this (well I’m almost certain I did, sometimes I daydream or dream about doing something then think I’ve already done it so things don’t get done cos I think I’ve already done it).  But yet I’ve had a letter saying I got to go to Bexleyheath…”

12. On 20 May 2014 a District Tribunal Judge treated the claimant’s letter as a request for a postponement of the hearing, and refused the request.  She observed that the tribunal could reconsider the application at the hearing, when it could make any appropriate decision or directions.

13. The claimant did not attend the hearing on 10 June 2014.  The tribunal refused her appeal.  It gave the following reasons for deciding to proceed with the hearing in the claimant’s absence:

“The Tribunal had to decide whether to accede to [the claimant’s] request for a postponement in order for there to be a domiciliary hearing.  It noted that the circumstances in which a domiciliary hearing would be granted are rare.  In this case had the Tribunal been satisfied that [the claimant] had severe mobility problems, it might have granted a postponement for a domiciliary hearing.  However, it took the view on the basis of her letter that it appeared that she was mobile … It therefore declined to grant a postponement for a domiciliary hearing.”

Discussion

14. Faced with a request to adjourn a hearing to enable a claimant to participate in the proceedings a tribunal must apply rules 31 and 2 of Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.  Under rule 31(b) the tribunal may only proceed with the hearing if it considers that it is in the interests of justice to do so.  The discretion bestowed by rule 31 must be exercised having due regard to the overriding objective of rule 2 to deal with the case fairly and justly.  Of particular relevance are rules 2(2)(e) and (c) which provide that dealing with a case fairly and justly includes “avoiding delay, so far as compatible with proper consideration of the issues” and “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings” respectively. 

15. The tribunal will, no doubt, have due regard to the fact that a decision to adjourn would cause delay.  However, it must also bear in mind that even then, under rule 2(2)(e), the avoidance of delay is only relevant “so far as compatible with proper consideration of the issues.”

16. To be weighed in the balance is the point that, under rule 2(2)(c), the tribunal should consider whether the refusal of an adjournment would preclude a claimant from participating fully in the proceedings.  That would involve a consideration of whether reasonable steps could be taken to facilitate their attendance.  Such a consideration is commensurate with the requirement of article 6 of the European Convention on Human Rights that guarantees to every party to proceedings a fair hearing, and with the basic requirement of the rules of natural justice.

17. Were the tribunal’s reasons for proceeding with the hearing in the absence of the claimant sufficient?  I am of the view that they were not.  There was no reference at all, whether in name or substance, to rule 31 or rule 2.  In the circumstances of this case, that in itself amounted to an error of law.

18. The error was compounded by the inadequate consideration given by the tribunal to what could have been done to have helped the claimant to attend a hearing.  Despite what she had initially said on the enquiry form, the claimant had clearly expressed a wish to be present at the hearing of her appeal, and had requested that the hearing be held at her home.  Indeed, it seems that she had been under the impression that she could have such a hearing until the refusal of her request for a postponement which she would have received less than three weeks before the hearing[1].  The District Tribunal Judge who had refused that request had expressly noted that the tribunal could reconsider the application at the hearing. 

19. The tribunal’s reasons on this issue were limited to a brief discussion as to whether the hearing should be adjourned for there to be an out of centre hearing, as set out above.  As the Secretary of State points out, even that was insufficient, for the discussion was limited to the claimant’s mobility and failed to consider her mental health problems and vulnerabilities which were apparent from the documents. 

20. Beyond that brief, inadequate discussion the Statement of Reasons does not reveal that the tribunal gave any thought as to how the claimant’s mental health difficulties could have been accommodated, or to what, if any, reasonable steps could have been taken to facilitate her attendance at a hearing. 

21. It is important for me to stress that the tribunal was right to observe that the circumstances in which an out of centre hearing (either in a claimant’s home or at a suitable place near his or her home such as, for example, an available room in a GP’s surgery) would be granted are rare.  Indeed, I understand that a decision to hold an out of centre hearing will, as a matter of practice, be made by a Regional Tribunal Judge to whom a suitable case must be referred.  Nevertheless, proper consideration should be given to the possibility in appropriate cases. 

22. In any event, the choice is not a binary one between attendance at a tribunal centre or an out of centre location.  The definition of “hearing” goes well beyond attendance by a party or parties in person before a tribunal. By rule 1(3) of the 2008 Rules a “hearing” means “an oral hearing and includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication.”  The latter would, I assume include a hearing by Skype. 

23. Furthermore, other possibilities may be considered.  These may include encouragement to attend accompanied by a friend or representative[2], or an explanation that taxi fares could be reimbursed. 

24. I agree with the Secretary of State’s submission that the tribunal’s failure in the circumstances of this case to consider whether special arrangements needed to be made so as to provide the claimant with a reasonable opportunity fully to participate in the proceedings amounted to an error of law.

25. Further, I am of the view that the error of law was a material one.  The evidence before the tribunal on (in particular) the claimant’s night-time care needs was limited.  The claimant’s own account of those needs was brief and lacked detail, and was rejected by the tribunal because it was not corroborated (in itself perhaps giving rise to an error of law).  There was no report of an Examining Medical Practitioner.  For reasons which are not entirely convincing the tribunal felt unable to regard the contents of a letter from the claimant’s friend which had gone into some detail about watching over the claimant at night.  That left the medical evidence.  However, that was limited to the GP’s records and two letters from psychiatrists to the claimant’s GP.  The GP’s records had to be seen in the context of the claimant’s contention that her GP did not really know her as she only saw him when she thought she had cancer, and that her treating  psychologist should be asked to provide evidence (a request which was not considered by the tribunal, giving rise, on the face of it, to a further error of law).  The letters from the psychiatrists shed some light on the claimant’s health problems and vulnerabilities, but they did not specifically address relevant issues in the case, such as the claimant’s night-time needs.

26. It is, therefore, abundantly clear that the claimant’s oral evidence would have assisted the tribunal.  She could, for example, have explained in much greater detail about her mental health conditions, their effect upon her, and what her night-time care needs were and why.

27. In the circumstances, as the tribunal’s error was a material one, it is appropriate that I set aside the tribunal’s decision.

28. I will now address the argument put forward by the Secretary of State in relation to the Senior President of Tribunals’ Practice Direction (First-Tier and Upper Tribunals: Child, Vulnerable Adult and Sensitive Witnesses) which was issued on 30 October 2008 and which reads as follows: 

PRACTICE DIRECTION

FIRST TIER AND UPPER TRIBUNAL

CHILD, VULNERABLE ADULT AND SENSITIVE WITNESSES

1. In this Practice Direction:

a. “child” means a person who has not attained the age of 18;

b. “vulnerable adult” has the same meaning as in the Safeguarding Vulnerable Groups Act 2006;

c. “sensitive witness” means 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.

CIRCUMSTANCES UNDER WHICH A CHILD, VULNERABLE ADULT OR SENSITVE WITNESS MAY GIVE EVIDENCE

2. A child, vulnerable adult or sensitive witness will only be required to attend as a witness and give evidence at a hearing where the Tribunal determines that the evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so.

3. In determining whether it is necessary for a child, vulnerable adult or sensitive witness to give evidence to enable the fair hearing of a case the Tribunal should have regard to all the available evidence and any representations made by the parties.

4. In determining whether the welfare of the child, vulnerable adult or sensitive witness would be prejudiced it may be appropriate for the Tribunal to invite submissions from interested persons, such as a child’s parents.

5. The Tribunal may decline to issue a witness summons under the Tribunal Procedure Rules or to permit a child, vulnerable adult or sensitive witness to give evidence where it is satisfied that the evidence is not necessary to enable the fair hearing of the case and must decline to do so where the witness’s welfare would be prejudiced by them giving evidence.

MANNER IN WHICH EVIDENCE IS GIVEN

6. The Tribunal must consider how to facilitate the giving of any evidence by a child, vulnerable adult or sensitive witness.

7. It may be appropriate for the Tribunal to direct that the evidence should be given by telephone, video link or other means directed by the Tribunal, or to direct that a person be appointed for the purpose of the hearing who has the appropriate skills or experience in facilitating the giving of evidence by a child, vulnerable adult or sensitive witness.

8. This Practice Direction is made by the Senior President of Tribunals with the agreement of the Lord Chancellor. It is made in the exercise of powers conferred by the Tribunals, Courts and Enforcement Act 2007.

29.  The Secretary of State submits that the tribunal should have considered whether the claimant was a “sensitive witness” to whom the guidance applied.  I must stress that I have not had full argument on the issue, but in deference to the Secretary of State’s submission I will give my response to it.

30.  I note that the Practice Direction was issued on 30 October 2008, and the 2008 Rules came into force some four days later on 3 November 2008, the date upon which First-tier Tribunals and Upper Tribunals came into operation.  I also note that the words of  paragraph 7 of the Practice Direction bear some similarity to the definition of “hearing” in rule 1(3) (see paragraph 22 above).  That may be more than a coincidence. 

31.  I have to say that even if the claimant fell within the definition of a “sensitive witness” and even if the Practice Direction applied to her, I fail to see how it would have added anything to the duty of the tribunal to consider whether reasonable steps could have been taken to have facilitated the claimant’s attendance at a hearing.  In other words, had the tribunal considered the matters set out at paragraphs 21 - 23 above, its failure expressly to refer to the Practice Direction would not, in itself, have amounted to a material error of law.

My decision

32. For the reasons set out above the tribunal erred in law and I set aside its decision. The Secretary of State has invited me to remit the case to be re-heard by a new First-tier Tribunal.  However, I have a wide discretion under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007. 

33. I take into account the fact that the Secretary of State’s decision was made in January 2013, almost three years ago, and that further delay would be caused if I were to remit the matter to be re-heard by a First-tier Tribunal.  I also bear in mind that I am considering a closed period.  It would, in my judgment, be disproportionate to remit the case to be re-heard if I am able fairly to decide it myself.  I acknowledge that I do not have the benefit of expert input from a medical member or a member with experience of disability.  However, in this case I consider that my decision will not be deficient on account of that lack of expertise. 

34. I have before me the evidence referred to at paragraph 25 above.  Even if, like the tribunal, I were to give no weight to the evidence of the claimant’s friend, I accept the other evidence.  It includes evidence of psychiatrists which sheds some light on the claimant’s mental health problems.  In addition, and significantly, the claimant has now provided further evidence, namely a letter dated 18 February 2015 from her clinical psychologist.  In addition to setting out the history of the claimant’s long-standing mental health condition, the letter describes its wide-ranging impact on the claimant’s mental stability including its significant effect on her tolerance of stress and ability to regulate her emotional state.  The letter explains that the claimant’s difficulties, which have been present since early adulthood, manifest in, among other things, sense of identity and mood, and her emotional instability is characterised by, among other things, significant self-harm.  The letter concludes that the claimant can become overwhelmed by interpersonal stress, and this impacts on her judgment to maintain her own and others’ safety.  It is for this reason, the letter states, that she obtains overnight support at her home.   

35. I accept without hesitation what the clinical psychologist says.  It is consistent with the evidence put forward by the claimant in relation to her night-time care needs as at the date of the decision.  It is unlikely that any new evidence is going to come out now about how the claimant was in January 2013, when the original decision was made.

36. On the basis that I accept the evidence before me (excepting, for the sake of argument, the evidence of the claimant’s friend) I find that as at the date of the decision the claimant needed someone to be awake to watch over her at night often to prevent danger to herself, as she was at risk of harming herself and/or putting the safety of herself or her daughter at risk.  It is not in issue that the claimant also satisfied the day-time disability conditions.  Accordingly, I find that the claimant met the criteria for an award of the highest rate of the care component as at the date of the decision.

37. I should add that there is nothing before me to suggest that the tribunal erred in law in its consideration of the mobility component, and I accordingly find that as at the date of the decision she was entitled to the lower rate of the mobility component.

38. As the claimant was awarded the lower rate of the mobility component and the highest rate of the care component from 18 May 2015 to 17 May 2020, my decision relates to the closed period of 18 May 2013 to 17 May 2015.

1. Rowley, Judge of the Upper Tribunal

(Signed on the original)

Dated: 16 November 2015