Upper Tribunal (Administrative Appeals Chamber)

 

 

IN THE UPPER TRIBUNAL Appeal No.  CPIP/2433/2015 

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 11 May 2015 under number SC944/14/00968 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 before a differently constituted tribunal.

 

2. The parties should send to the relevant HMCTS office within one month of the issue of this decision, any further evidence upon which they wish to rely.

 

3. The new tribunal will be looking at the appellant’s circumstances at the time that the decision under appeal was made, that is the 28 May 2014.  Any further evidence, to be relevant, should shed light on the position at that time.

 

4. The new tribunal is not bound in any way by the decision of the previous tribunal.  It will not be limited to the evidence and submissions before the previous tribunal. It will consider all aspects of the case entirely afresh and it 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

 

1.    On 13 June 2013 the Appellant made a claim for Personal Independence Payment (PIP).  He was examined by a Health Professional on 8 May 2014. On 28 May 2014 the Secretary of State decided not to award the Appellant any points, and so he was not entitled to PIP.  The Appellant appealed to the First-tier Tribunal.

2.    A hearing took place before the First-tier Tribunal on 11 May 2015. The Appellant was present and gave evidence. He was represented by a welfare rights officer from Tameside Metropolitan Borough Council.  The Secretary of State was also represented. 

3.    The First-tier Tribunal decided to award the Appellant 2 points under disability living descriptor 9b of Schedule 1 of the PIP Regulations, and 4 points under mobility descriptor 1b.  These were insufficient to result in any award of PIP.

4.    The Appellant appealed to the Upper Tribunal on a number of grounds. 

5.    I gave permission to appeal on only one ground: whether the tribunal’s reliance on its observations of the Appellant at the hearing should have been put to him so that he could comment on them.

6.    I refused the Appellant permission to appeal on any other ground.  I observed that, other than the above possible error, the reasons provided by the tribunal were clear and thorough and the hearing had been conducted fairly.

7.    By written submissions dated 21 October 2015 the Secretary of State does not support the appeal.  He submits that this case should be distinguished from one where the tribunal had relied on evidence which had not been before the parties.  In this case, the tribunal’s observations were of evidence which was available for all to see and comment on. The observation was sufficiently put to the Appellant (relying on paragraph 4(5) of the statement of reasons, which I set out below). In addition, the Secretary of State submits that the observations were consistent with the other evidence before the tribunal and it would have reached same conclusion even if had not taken into account the observations.

8.    The Appellant’s current representative has sent written submissions in which she accepts that it was open to the tribunal to rely on its observations but that it was unfair not to put them to the Appellant.  She submits that the observations were “hidden evidence”. The Appellant could not have known what the tribunal observed or assumed. Although it cannot be known what the Appellant would have said if the observations had been put to him, he would not have confirmed what the tribunal decided.  She submits that the observations are likely to have influenced the tribunal in relation to its approach to other evidence. 

9.    Neither party has requested an oral hearing and I am satisfied that I can fairly determine this appeal without one.  Oral evidence is irrelevant, the parties have provided helpful written submissions and I have all the information I require in the documents before me.

 

Discussion

10. The parties are agreed that it is open to a tribunal to take into account its observations of a party or other witness.  The only issue is whether the tribunal should have put those observations to the Appellant or his representative at the hearing. 

11. In R (DLA) 8/06 Commissioner Jacobs summarised the principles as to reliance by tribunals on observations made at hearings.  I summarise these further as follows:

a)    A tribunal may take into account observations made at a hearing.

b)    An observation must be relevant to an issue of fact that is before the tribunal  and to the time of the decision under appeal, and must be reliable as evidence of the claimant’s disablement at the relevant time rather than only a snapshot on a particular day. 

c)    The tribunal must assess the significance of observations in the context of the evidence as a whole, and it may be necessary to make further inquiries arising from or in relation to an observation. 

d)    A failure to allow a claimant to comment on a tribunal’s observations may be a breach of the tribunal’s inquisitorial function or of its duty to ensure that the parties have a fair hearing. 

e)    If an observation is used purely as confirmation of a conclusion that the tribunal would have reached anyway, there is no need for a tribunal to investigate it further or for the claimant to have a chance to comment on it.

f)     However, if an observation is one of the factors taken into account in reaching a conclusion, any failure in the tribunal’s inquisitorial duty or violation of the right to a fair hearing will mean that the decision is wrong in law.

12. I turn now to the observations made by the tribunal in this appeal.

13. Section 3 of the statement of reasons contains the tribunal’s findings of fact.  It includes the following observations of the Appellant made by the tribunal:

 “(g) During the full morning’s hearing [the Appellant] turned to his partner infrequently for assistance and displayed a very high level of concentration, logical thought and good communication skills. He was upset for a short time at the beginning but soon recovered and engaged well throughout. His partner seemed relaxed and able to allow [the Appellant] to respond to all questions while she looked after the baby. She did not look to prompt [the Appellant] and in view of the Tribunal was not used to having to prompt him.

(h) [The Appellant] when younger had been a boxing coach and was dressed in a top that, in the view of the medical member of the Tribunal, showed that he had good muscle tone and in the view of the Tribunal did undertake activities and exercised on a regular basis.”

14. The tribunal’s reasons as to the application of the Schedule 2 activities were set out in numbered paragraphs under paragraph 4.  These included the following observations under the heading “Communicating verbally”:

“(5) The Tribunal clarified this with the appellant as he had demonstrated excellent skills in the Tribunal of expressing himself clearly and answering all the questions that had been posed. He indicated that he feels that he gets anxious as he did at the beginning of the Tribunal and that causes him difficulties. The Tribunal accepted that at the beginning of the hearing he was observed getting upset and tearful, however he recovered quickly and coped admirably well, including coping with his baby who was starting to cry whilst his partner was out of the room…. [The Appellant] coped for 2 ½ hours at the Tribunal dealing with complicated issues …” 

15. I do not consider that the observation at 3(h) added materially to the tribunal’s conclusions as it had in any event found as a fact that the Appellant attended the gym.  That was the Appellant’s evidence (record of proceedings at page 225).  The observation merely confirmed what the tribunal had concluded and it was not unfair that it had not been put to the Appellant.

16. However I find that the observations at 3(g) should have been put to the Appellant, for reasons which I now explain.  

17. The findings at 4(5) reflect and are based on the tribunal’s observations at 3(g).  It is also highly likely that the observations at 3(g) informed the tribunal’s conclusions in respect of most if not all the activities considered, as the Appellant claimed his functional difficulties were in large part associated with anxiety, inability to concentrate and lack of motivation and consequently gave rise to needs for assistance, prompting or encouragement in relation to the activities.  The tribunal referred to the Appellant having “displayed sufficient concentration” in relation to Activity 1.  It is also likely that the tribunal’s observations were relevant to its conclusion as to the Appellant’s ability to engage with other people, although not specifically mentioned in that context.

18. I conclude that the observations at 3(g) did not merely confirm the findings made by the tribunal.  For the reasons which I explain above, they were a significant factor which the tribunal took into account in reaching its conclusions.  The observations were relevant to central issues before the tribunal in relation to most if not all of the activities.  Fairness required the tribunal to put the observations to the Appellant for comment. 

19. I do not agree with the Secretary of State that because the Appellant’s presentation at the hearing was “available for all to see”, the Appellant could have commented on it and so it was not necessary to put it to him.  The tribunal’s observations which it relied on in its decision were significantly based on its own perception or interpretation of the Appellant’s conduct and the Appellant was unable to comment on that.

20. The observations were not put to the Appellant.  Contrary to the Secretary of State’s submission, the opening words of paragraph 4(5) do not say that the tribunal put to them to the Appellant. It is not clear what the tribunal meant in that phrase.  It appears that the words “clarified this” refer to the heading of that paragraph, “Communicating verbally”.  It is likely that the tribunal was explaining that it had specifically explored the Appellant’s case as to verbal communication with him because of the contrary observations made at the hearing.  That is not the same as saying that the tribunal put the observations to the Appellant. I could not find anything in the detailed record of proceedings to suggest that that had been done. There is one place at which the tribunal asked the Appellant if he could cope when his partner left the hearing room (page 223) but I could find nothing else.

21. I have considered whether it would have made any difference if the observations had been put to the Appellant.  In R(DLA) 8/06 Commissioner Jacobs quoted from the judgment of Mr Justice Megarry in John v Rees [1970] Ch 345 at 402:

“As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence events.”

22. It is not possible to know exactly what the Appellant would have said if the observations had been put to him but, given his position in the appeal, it is highly unlikely that he would have accepted those observations without comment. The Appellant has said in his submissions to the Upper Tribunal that the First-tier Tribunal’s reasons under-stated the level of distress that he experienced at the hearing and that the tribunal was wrong to say that the Appellant had recovered during the hearing.  Had the observations been put to the Appellant, he could have explained this at the time.  He might have advanced reasons why his presentation at the hearing was not typical of his abilities or why despite his presentation he nonetheless satisfied the descriptors. This is an example of the importance of the tribunal testing the reliability of the observations.  In failing to give the Appellant the chance to address the observations, not only did the tribunal act unfairly but it also failed in its inquisitorial duty because it had not adequately tested that evidence.

23. The fact that there was other evidence before the tribunal which supported its conclusions does not mean that there was no unfairness to the Appellant. The observations were amongst the relevant factors taken into account by the tribunal.  In addition it is possible that those observations influenced the way in which the tribunal weighed the other evidence before it.  For example, on one reading of paragraph 4(g) the tribunal’s reliance on Dr Squire’s report as to the appellant’s presentation at interview was at least in part because it took the view that the report was consistent with the tribunal’s observation of him at the hearing.

24. I conclude, therefore, that the tribunal erred in law in failing to put its observations to the Appellant.  The decision must be set aside.

25. I am not able to remake the decision.  There will need to be further findings of fact made on the basis of written and oral evidence.  I therefore remit the appeal to be heard by a differently constituted tribunal as directed above.

 

 

 

 

Signed on the original Kate Markus QC

on 17 December 2015 Judge of the Upper Tribunal