Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 2 March 2011 at Darlington under reference 224/10/01824) involved the making of an error in 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 tribunal for rehearing by a differently constituted panel.

DIRECTIONS:

A.         The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

B.         In particular, the tribunal must investigate and decide whether the claimant was entitled to an employment and support allowance on and from 24 May 2010. In doing so, the tribunal must not take account of circumstances that were not obtaining at that time: see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.

Reasons for Decision

A.         History and background

1.          The Secretary of State terminated the claimant’s award of an employment and support allowance with effect from 24 May 2010. She exercised her right of appeal to the First-tier Tribunal, with the help of her representative. The representative could not attend the hearing of her appeal, but provided a written submission and supporting evidence. Part of the submission related to regulation 29 of the Employment and Support Allowance Regulations 2008 (SI No 794). It was based on medical evidence from the claimant’s GP that her ‘symptoms and medical condition pose a substantial risk to her if she were to work and I am sure that if she were found fit for work, even given these medical problems[,] it would have a detrimental impact on her physical as well as her mental health.’ The tribunal dismissed her appeal and the presiding judge provide written reasons.

2.          The claimant’s representative applied for permission to appeal. One of the grounds was that the tribunal had failed to deal with regulation 29. The application came before Judge Connell, who directed the presiding judge to state whether or not the tribunal dealt with regulation 29 and whether he wished to amend the reasons. That direction is on the First-tier Tribunal’s file, as is the judge’s reply to the clerk:

Please advise Mrs Connell that I consider Reg 29 in the vast majority of appeals. The current E.S.A. regulations (descriptors) “overlook” a significant amount of disabled claimants who may not be entitled to an award of points but have significant problems. Reg 29 ESA is often applied and significantly more than Reg 27 Incap. for Work Regs.

It was therefore considered in the present case. Amended Statement enclosed.

The judge added this passage to the reasons:

12. The tribunal considered whether the appellant was entitled to Employment and Support Allowance by reasons of exceptional circumstances identified under Regulation 29(2)(b) of the ESA Regulations 2008.

The specific disease diagnosed was cervical spondylosis with radiculopathy. The further physical disablement, not originally reported in the appellants ESA 50 or to the medical examiner was back pain. There was no evidence of mental health disablement for the reasons set out at paragraph 6 hereof.

Paragraphs 7-10 above set out the reasons for the tribunal’s finding of the fact that the appellant’s neck and back problems did not cause significant restriction of functional ability. Consequently, on the balance of probabilities and the available evidence there would be no substantial risk to the mental and physical health of the appellant if she was found not to have a limited capability for work.

3.          Judge Connell gave the claimant permission to appeal and the Secretary of State’s representative has supported the appeal. The case was originally assigned to Upper Tribunal Judge Williams, but he has passed it to me for decision to avoid delay.

B.         The additions to the reasons were not permissible

4.          A tribunal has two powers to alter its reasons. It has power to correct its reasons under rule 36 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No 2685):

36 Clerical mistakes and accidental slips or omissions

The Tribunal may at any time correct any clerical mistake or other accidental slip or omission in a decision, direction or any document produced by it, by-

(a) sending notification of the amended decision or direction, or a copy of the amended document, to all parties; and

(b) making any necessary amendment to any information published in relation to the decision, direction or document.

It also has power to amend its reasons under section 9(4)(b) of the Tribunals, Courts and Enforcement Act 2007. The power to amend only arises if the decision was set aside on review. The decision in this case was not set aside either by the presiding judge or by Judge Connell. I have examined the First-tier Tribunal’s file and am satisfied on that point. The judge could, therefore, only have exercised the power to correct under rule 36.

5.          The question then arises: were the additions authorised by rule 36? I dealt with the scope of that rule in AS v Secretary of State for Work and Pensions [2011] UKUT 159 (AAC):

16. Rule 36 is by its contents a species of slip rule and should be interpreted in accordance with the nature of that type of provision. As such, it deals with matters that were in the judge’s mind when writing but for some reason did not find their way onto the page. Typical examples are the typing error that produces the wrong date or a momentary lapse of concentration that results in the word ‘not’ being omitted. The rule does not cover matters that the judge had planned to mention but forgot to include. …

6.          I consider that the additions were outside the scope of rule 36. They went beyond a momentary slip of the judge’s mind that occurred as he was writing the reasons. They are too long for that. The most likely explanation is that the judge on this occasion forgot to deal with them.

7.          There is a good example of what is permissible under rule 36 in paragraph 8 of the amended reasons. As originally written, that paragraph made sense. In the amended version, there has been some gibberish inserted into one sentence. No doubt that was a glitch in the word processing that led by mistake to multiple insertions in the wrong place. That sort of error caused by lapse of attention is the type of thing that can be corrected under rule 43.

C.         These were the tribunal’s reasons, not just the judge’s

8.          The Secretary of State’s representative has submitted that ‘it is not clear in this case that the amendment was produced after a discussion by both members of the tribunal and that it reflects their joint view.’ The representative is correct that there is nothing to show that that was done. The First-tier Tribunal’s file contains no evidence that the doctor on the panel was consulted. I regard the lack of evidence as irrelevant. The reasons are written by the presiding judge, but they are the reasons of the whole tribunal. When the reasons are altered, they must record what the tribunal agreed, not what the judge wished the panel had done. That is basic. I do not expect to find evidence to show that that is how a judge approached the addition to the reasons. I look for evidence that a judge did not comply and there is none.

D.        Why I have directed a rehearing

9.          The reasons as drafted are deficient for failing to deal with an issue expressly raised by the claimant’s representative. That was an error of law.

10.       The Upper Tribunal has power not to set aside a decision despite an error of law: section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. It would not be appropriate to exercise that power in this case. To be frank, the Upper Tribunal is seeing an increasing number of cases in which First-tier Tribunal judges of one Region have made significant changes to the written reasons. If this is allowed to become a convenient device for bypassing the limited scope of rule 36, the Upper Tribunal will effectively subvert the rule. It has no power to do that.

11.       I draw the attention of the First-tier Tribunal to what the Court of Appeal said in Brewer v Mann [2012] EWCA Civ 246. The circumstances of that case were very different from this, but the point is of general significance:

31. It is necessary therefore to suspend for the while our decision on the status of judgment 4. However, we feel that we can provisionally state that where a judge has received no request from the parties to reconsider his judgment or add to his reasons, and has not demonstrated the need in conscience to revisit his judgment, but on the contrary has received grounds of appeal and an application for permission to appeal on the basis of the alleged inadequacies of his judgment, then it would be most unwise for him to rewrite his judgment (other than purely editorially) and it would take the most extraordinary reasons, if any, to justify such a course on his part. It is also plain to us that this was not the case of a short judgment on a straightforward issue where an appeal might be avoided if the judge supplied further reasoning which had been requested of him.

 

 

Signed on original on 22 March 2012

Edward Jacobs Upper Tribunal Judge