THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The decision of the First-tier Tribunal sitting in Swindon on 11 May 2010 (the tribunal) is erroneous in law. I therefore refer the case to another tribunal for determination afresh.  Permission to appeal was given by Upper Tribunal Judge Lloyd-Davies.  The appeal is not supported on behalf of the Secretary of State but, for the reasons set out below, I do not agree with that lack of support.

REASONS FOR DECISION

Background

1.	As this is now the third time that the claimant’s appeal (against an adverse decision dated 24 April 2009 by a decision maker (DM) on behalf of the Secretary of State that he was not entitled to either the mobility or care components of Disability Living Allowance (DLA)  from and including 12 February 2009) has been returned for rehearing, a circumstance which I regret but unfortunately can not avoid, I set out only that history which is essential to understand my reasoning.

2.	On 19 March 2010 a District Tribunal Judge set aside as in error of law the decision of a First-tier Tribunal which had sat in Swindon on 27 August 2009.  Her decision notice included the following directions:

	“[The claimant] is invited to say if he would be willing to and would prefer to, attend a hearing at  the Bristol venue.  The note below explains.”

There was then appended this note:

	“[The claimant] complains about the facilities at Swindon Magistrates Court.  The rooms are not designed for these hearings.  The accommodation in Bristol allows hearings to be conducted in a smaller room, at a table, and that is the preferred layout.  That facility is not available in Swindon, nor are hotel facilities used in this district.  If [the claimant] would prefer the hearing to be in Bristol, that can be arranged.  If not, the hearing will be listed at the current premises in Swindon, which are likely to be in the same Courthouse.”

The Clerk was instructed, on the same decision notice, that the hearing was to be relisted in Bristol  “… if [the claimant] elects a hearing at Bristol, otherwise as current arrangements permit”.  

3.	The claimant responded to this by a letter dated 5 April 2010 stating:

	“ … If there is to be another hearing I would prefer it to be in Bristol”.

As this document was in the First-tier Tribunal file, it must have reached the Cardiff Office although it was given no stamp indicating the date of receipt.  On 22 April 2010 the Cardiff Office notified the claimant of a hearing date at Swindon on 11 May 2010.  On 2 May 2010 the claimant replied asking 

	“ … for the hearing to be rescheduled at Bristol”.

4.	The Clerk put this before a District Tribunal Judge as a request for a postponement, although it would appear rather to have been simply a request to change venues rather than date.  On 6 May 2010 the Tribunal Judge ruled that the hearing should not be postponed; whether or not he or she had read the earlier review decision is not clear.  The postponement refusal was notified to the claimant on the same day.  

5.	The claimant replied by fax dated 10 May 2010 giving reasons why he would not be attending the hearing the next day: he expressed the first reason thus:

	“As I am sure you are well aware you are now in breach of your own rules.  I sent you a letter stating I wasn’t prepared to have the hearing in Swindon, for the reasons given in my appeal, and complied with the directions given in the appeal documents dated 19/3/10.

	I will appeal any result of the hearing on 11/5/10 as you haven’t complied with the directions given for the hearing.  The previous hearing was obviously biased in its conduct and you have now gone on record as being biased in refusing to comply with a perfectly reasonable requirement from the higher tribunal.  Personally I don’t believe that there is any prospect of a fair hearing in this case, under any circumstances, after you have shown such prejudice in the past.”

6.	At the tribunal hearing of the claimant’s appeal on 11 May 2010 in Swindon,  neither party was present.  So far as the DM was concerned, the lack of a Presenting Officer (PO) was in breach of the direction that a PO should attend any rescheduled hearing, which had been given by the District Tribunal Judge in the decision notice of 19 March 2010.  With respect to the absence of the claimant from the tribunal’s hearing on 11 May 2010, the record of proceedings includes this statement:

	“A fax was received via Cardiff from [the claimant] indicating he would not be coming.  A check was made that he not [sic] requested a hearing at Bristol, see Directions of 19-3-2010, so the present tribunal decided to proceed”.

7.	The tribunal dismissed the appeal and, in due course, provided a written statement of reasons for that decision.  After a refusal to set the decision aside, which set aside had been applied for on the basis that the proceedings were “… in breach of the directions for this hearing”, the claimant appealed to the Upper Tribunal.  Permission was refused at the First-tier level.

Appeal to the Upper Tribunal

8.	The claimant’s primary grounds of appeal are that the tribunal’s hearing was held in breach of the previous directions of 19 March 2010 so that, as the claimant put it:

	“I wasn’t present as my illness/prior experience of the Swindon venue made my attendance impossible.

	The tribunal were thus unable to take any account of my evidence or that of my wife”.

Secondly, there is complaint about how the tribunal has treated the evidence and the conclusions it has drawn from that evidence.

9.	Upper Tribunal Judge Lloyd Davies gave permission to appeal on the single ground:

	“Should the tribunal have postponed/adjourned so that the hearing might take place in Bristol?”.

10.	This is probably why the submission on behalf of the Secretary of State addresses this ground only and with respect to the remainder of the appeal states simply:

	“The rest of the grounds express a general dissatisfaction with the conduct of the [tribunal], but do not identify any error of law”.

11.	The crux of the Secretary of State’s lack of support, in the submission dated 25 January 2011, is the following:

	“I submit that although the FtT has not included its deliberations in the statement of reasons it is clear from the record of proceedings (pages 134-145) that it properly exercised its discretion about whether to adjourn, but decided to proceed.  I further submit that the fax received by the FtT justified its decision to proceed in the claimant’s absence.  I also submit that had the hearing been adjourned and rescheduled to be held at Bristol the claimant had already made it clear that he would not attend in furtherance of his appeal.

	He does, however, indicate under the last paragraph of “Appeal ground 1” of his letter of 07.07.10 (page 143) that he would attend future hearings to observe.  However, I submit that where a claimant turns up at a hearing purely in the role of an observer s/he wouldn’t be there as a party or a witness and therefore wouldn’t be able to provide any evidence.  Consequently, I submit that where the claimant had said they wanted an oral hearing, but had indicated that s/he was going to attend only as an observer, the Tribunals Service would be entitled to hold a paper hearing.  I also submit that where the claimant elects to have an oral hearing, and attends the hearing, but refuses to take part, s/he could not be said to have complied with rule 2(4) of the Tribunal Procedure (First-tier Tribunal)(SEC) Rules 2008 (Rules), and would run the risk of having the proceedings struck out under rule 8(3)(b) of the Rules, or the FtT’s decision going against them for want of sufficient supporting evidence.”

12.	In his observations in reply, the claimant comments:

	“It is interesting to note that the fact I stated I didn’t want to attend future hearings in a letter written when I was upset/unwell is taken so literally.  This is precisely the problem I face on a day to day basis.  When unwell I make rash ill informed decisions/actions”.

13.	Subsequent to both parties making their submissions on the appeal, the Office of the Upper Tribunal in London discovered that a procedural oversight had occurred in that office.  The communications referred to above (see my paragraphs 3 and 4), dated 5 April 2010, 22 April 2010, 2 May 2010 and 6 May 2010, had not been copied to the parties.  Accordingly, the representative of the Secretary of State was asked to state if, in the light of those extra documents, there were any further views on the merits of the appeal.   The response was that there were not.
 
Discussion of the submissions 

Breach of the rules of natural justice

14.	In my judgement, no blame can be attached whatsoever to the tribunal for the procedural errors which occurred in the present case.  Before starting, the tribunal asked for a check to be made that the claimant had not requested a hearing at Bristol and received an answer in the negative;  the tribunal could not be expected to speculate on the possibility that such a request had gone astray and, on that basis, consider whether to postpone for the case to be listed in Bristol.  Given the sequence of events as the tribunal naturally considered it to be, and the pressure to deal with cases timeously, I take the view that the tribunal acted properly in proceeding.   The enquiries made in Cardiff were presumably inadequate but the tribunal was not to know that and could hardly expect it.

15.	Notwithstanding, the tribunal’s decision must be set aside as in error of law.  As Mr Commissioner Rowland (as he then was) said at paragraph 8 of CIB/5227/1999:

	“However, the question on this appeal is not whether the tribunal  themselves were at fault but it is whether their decision  is erroneous in point of law … and a decision is erroneous in point of law if reached in breach of the rules of natural justice”.

16.	In CIB/5227/1991, a tribunal went ahead with a hearing on the papers because the claimant had not replied to a Clerk’s notice which, among other things, directed the claimant to state whether he wished there to be an oral hearing.  Having heard oral evidence from the claimant, the Commissioner determined that he had never received the direction, either because it was not posted albeit issued, or because of a fault in the postal service or due to another occupier taking the letter when it arrived in the house where the claimant lived.   The end result, howsoever it came about but not through his fault, was that the claimant did not have the opportunity of an oral hearing where he could put further contentions to a tribunal.

17.	The Commissioner concluded that the particular tribunal under scrutiny could not be criticised for the approach it took on the evidence before it:  “However, had [it] been made aware that the claimant had not actually received the clerk’s direction, it would have been wholly wrong for [it] to proceed with the appeal at a paper hearing”.  (Paragraph 8 of CIB/5227/1999).

18.	In R(IS)11/99 the same Commissioner, after noting various types of mistake by a tribunal which reveal an error law,  in paragraph 4 continued:

“A decision will also be erroneous in point of law if (g) there has been a breach of the rules of natural justice or (h) there has been a material breach of the other procedural rules, statutory and implied, that must be followed by tribunals, chairmen and clerks”.

19.	In paragraph 10 of CIB/5227/1999, Mr Commissioner Rowland suggests that the grounds upon which a decision may be held to be erroneous in point of law may be even more numerous than those listed by him in R(IS)11/99 and concludes, having regard to the circumstances in front of him in CIB/5227/1999:

	“In this case, it is clear that, if, as I have found, the claimant did not receive the clerk’s direction, there was a fundamental unfairness about the proceedings before the tribunal.  I am quite satisfied that unfairness renders the decision of the tribunal erroneous in point of law.”

20.	I followed this reasoning in CSDLA/1006/01, where a tribunal could not comply with the duty to give reasons for its decision because the record of its proceedings had been administratively mislaid so that the chairman could not construct the requested full statement; the resultant decision  was in error of law.  Likewise, in the present case, I judge the rationale of CIB/5227/1999 to be applicable.  Had the tribunal been aware of the full circumstances, it is improbable that it would have gone ahead rather than postponing for the case to be listed in Bristol;  in any event a determination made in ignorance of relevant matters, has the effect of being unfair.

21.	Without further argument, which is unnecessary for the purposes of this decision, I do not agree with the submission on behalf of the Secretary of State that, if a claimant says he or she wants an oral hearing but will only attend it as an observer, then a paper hearing may then properly be held; a claimant may still wish others to give oral evidence on his or her behalf.  It is, moreover, highly unlikely that a refusal by a claimant to give personal oral evidence at a hearing would ever be considered to justify a striking out of the case, particularly if such a claimant has produced further written submissions or has a representative at the hearing; a tribunal is, however, able to draw adverse inferences, if appropriate, from any unwillingness by a claimant to answer the tribunal’s questions at an oral hearing, but that must depend upon all the circumstances.  

Summary

22.  	The appeal is therefore remitted to a new tribunal to begin again.  It is emphasised it will be a complete rehearing on the basis of the evidence and arguments available to the new tribunal;  the determination of the claimant’s case on the merits is entirely for that new tribunal.  Although the claimant has been successful in his appeal limited to issues to law, the decision on the facts in his case remains open.  An oral hearing offers the claimant the opportunity to expand and amplify his evidence, an opportunity which he would be wise to take.
  
23.	As I have set aside the tribunal’s decision, and with reference to the only ground given by the Upper Tribunal Judge for granting permission to appeal, I have not measured the tribunal’s statement of reasons against the points that the claimant has raised with respect to them.  This decision therefore gives no view one way or the other as to their merits.  I do however give some general guidance with reference to what the claimant has submitted:

•	a tribunal is limited to consideration of the circumstances on the date a decision under appeal to it was made viz 24 April 2009 in the present appeal: on that date and for three months prior to that date did the claimant satisfy entitlement to DLA, either component at any rate, and, if so, was he likely to do so for a further six months from that date?

•	If a claimant makes adjustments to his own lifestyle, that is not the care relevant to entitlement to DLA, which relates only to help required “from another person”.  

•	Conclusions of fact, even if a party does not agree with them, are not errors of law unless no reasonable adjudicating authority could make such findings having regard to the evidence.

•	No one tribunal is bound by the findings or conclusions of another tribunal; provided the later body acts reasonably on the evidence before it and explains its reasoning, that is enough.

•	The starting point is consideration of a claimant on his own at the relevant date and what on that basis are the totality of statutory needs, if any, reasonably required;  it is not the help he actually receives or what he would like to receive which counts but the test is an objective one of reasonable requirements, having regard to proven physical or mental disablement and to the risks  which arise at the relevant date or would then so do if he was on his own.  Whether or not a claimant actually receives help, and what are the factual circumstances governing that matter, are evidentially relevant but are not determinative.

				(Signed)
			L T PARKER
			Judge of the Upper Tribunal
			Date: 15 September 2011