IN THE UPPER TRIBUNAL Case
No. CIB/2940/2012
ADMINISTRATIVE APPEALS
CHAMBER
Before Judge Mark
Decision: The appeal is allowed. I set aside the decision
of the tribunal and remit the matter to be reheard in accordance with the
directions given below.
REASONS FOR DECISION
- This is a supported
appeal with the permission of a District Tribunal Judge from a decision of
the First-tier Tribunal dated 13 June 2011 dismissing the appeal of the
claimant from a decision of the Secretary of State that he could not be
treated as incapable of work and was not entitled to incapacity credits
from and including 13 May 2010.
- The claimant had sought an
oral hearing of his appeal and one was listed on 3 February 2011 when he
attended with his mother and gave evidence. He was not represented and
there was no presenting officer from the Secretary of State. The tribunal
decided that it needed to see his full medical records and adjourned the
hearing to a half hour paper hearing on receipt of medical evidence.
There is nothing in the record of the proceedings or the decision notice
that day to indicate that the claimant was asked if he wished to attend a
further hearing when his medical records would be considered or that he
was given any choice as to how the matter proceeded. Nor was he given any
opportunity to make any written submissions as to anything in the medical
records when produced.
- The medical records were
obtained and the tribunal then reconvened on 13 June 2011 and decided to
dismiss the claimant’s appeal. There is no indication that the claimant
was ever told of the new hearing date or provided with copies of the
medical records before that date. By letter dated 21 June 2011 the
claimant asked for the decision to be set aside because he wanted an oral
hearing. That application was refused by a decision dated 26 October 2011
on the ground that the claimant had already given oral evidence and had
not challenged the adjournment notice which made it clear that the
tribunal was requesting further medical evidence and intended to make its
decision without a further hearing. It was also pointed out that the
claimant had not shown that he disputed anything in the medical evidence.
- At that point the claimant
took legal advice and his solicitors applied for a written statement of
reasons by letter dated 24 November 2011. A brief statement of reasons
was provided dated 6 December 2011. This was said to have been issued to
the claimant personally on 23 December 2011 but he has said that he did
not receive it, and no copy was sent to his solicitors as it should have
been until 13 March 2012.
- The solicitors then sought
permission to appeal on the grounds that there were no adequate findings
of fact or reasons and that the law had not been correctly applied. I
shall return to the complaints as to inadequate findings, but the
solicitors also stated that the claimant had not been provided with the
record of the proceedings on 3 February 2011, was not asked whether he
wanted to attend the rescheduled hearing and was left under the impression
that he would be attending it. Nor, the solicitors pointed out, was there
any record by the tribunal at the resumed hearing whether in the statement
of reasons or otherwise to indicate that it had considered whether, in the
light of the medical evidence, it should adjourn for an oral hearing or
proceed on paper.
- In giving permission to
appeal by a decision dated 30 July 2012, the district tribunal judge asked
whether, when the tribunal reconvened on 13 June 2011 it was (i) making a
decision without a hearing such that rule 27(1) of the Tribunal Procedure
(First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the 2008
Rules) applied, or (ii) continuing the previous hearing, and if so whether
rule 31 of the 2008 Rules applied or (iii) merely continuing the decision
making process which follows the end of a hearing, in which case did the
overriding objective require the tribunal to give the claimant the
opportunity the opportunity to make written observations on the additional
medical evidence or to consider whether to re-open the hearing? He stated
that he had been unable to find anything in the papers to indicate that
such steps were taken or considered. The district tribunal judge rightly
drew attention to MM v Secretary of State for Work and Pensions,
(ESA) [2011] UKUT 334 (AAC) where Judge Mesher decided that if a tribunal
did not hold a hearing and there was no record of proceedings, the
statement of reasons must deal explicitly with the conditions in rule
27(1) of the 2008 Rules.
- Rule 27(1) of the 2008
Rules provides that, with certain exceptions, the tribunal must hold a
hearing before making a decision which disposes of proceedings unless (a)
each party has consented to, or has not objected to, the matter being
decided without a hearing; and (b) the tribunal considers that it is able
to decide the matter without a hearing. Rule 29(1) requires the tribunal
to give each party entitled to attend a hearing reasonable notice of the
time and place of the hearing (including any adjourned or postponed
hearing). Rule 31 provides that if a party fails to attend a hearing the
tribunal may proceed with the hearing if it is satisfied that the party
has been notified of the hearing or that reasonable steps have been taken to
notify the party of the hearing and that it considers that it is in the
interests of justice to proceed with the hearing.
- The basic principle is
that a party is entitled to an oral hearing of their case at First-tier
level. In this case, the claimant had asked for an oral hearing, which is
why one was held on 3 February 2011. That right to an oral hearing
extends to the whole of the hearing, including any further or adjourned
hearing if the matter is not concluded on the first occasion. It was not open
to the tribunal to decide, without the clear consent of the claimant, that
it could hold a further hearing on papers to consider the medical
evidence. He had as much right to attend that hearing, make
representations as to the contents of the medical reports and give
evidence as to any matter contained in them, in the same way as he would
have had the right to do so had they been available at the initial
hearing. The right to an oral hearing is not satisfied by allowing the
claimant to attend only part of the hearing.
- It is, of course,
sometimes convenient if a case does not finish within its allotted time or
if further legal submissions are needed or further evidence has to be
obtained, if the remaining matters can be dealt with on paper. But that
can only happen with the consent of any party who has requested an oral
hearing because it is all part of the same hearing. Even then, both
parties should both have the opportunity to consider the new evidence and
the submissions of the other of them so that they can properly deal with
it. The tribunal should not have before it evidence or submissions which
one or both parties has not had the opportunity of seeing or commenting
on. For this purpose each party has the opportunity, by attending a
hearing, of seeing and commenting on any evidence given at that hearing.
- In considering whether to
deal with any outstanding matters on paper in the course of an oral
hearing, the tribunal must first obtain the consent of anybody at that
hearing to that course. It may also need to obtain the consent of anybody
whose decision not to attend the hearing may be affected by additional
evidence that is being obtained. Further, the tribunal must consider,
even if that consent is given, how submissions are to be obtained on that
evidence and whether it is in the interests of justice to proceed on
written submissions. This last point is particularly relevant with an
unrepresented claimant who may not understand what points may need
addressing or who may lack the capacity adequately to address them in
writing. It will frequently be better that relevant parts of the
additional evidence should be put to the claimant so that he can comment
on them.
- It follows that the
tribunal was in error of law (1) in deciding to hold the adjourned hearing
as a paper hearing without (a) first informing the claimant that it
intended to do so and asking his permission to do so, he having asked for
a complete oral hearing; (b) failing to consider and explain why it
considered this course to be in the interests of justice; (c) failing to
give both parties any opportunity to comment on or adduce evidence in
relation to the new medical evidence; and (d) failing, on receipt of the
medical evidence to consider again whether it was in the interests of
justice to proceed in the absence of the claimant.
- None of this was dealt
with in the statement of reasons.
- In addition, the statement
of reasons was woefully lacking in findings. It is possible to infer from
them that the tribunal concluded that the claimant’s physical ailments
were such that, apart from the occasional renal failure they were not such
as to score any points on the physical descriptors, although it is not
entirely clear why the two sometimes descriptors might not apply when the
claimant claims to have been repeatedly ill with serious vomiting and to
suffer from sciatica. It might also have considered the effect of the
claimant’s regular vomiting, described at p.44 by a hospital doctor as 17
years of chronic episodic nausea and vomiting, with episodes of vomiting
for up to 2-3 weeks every 2 months or so, on his ability to perform the
other descriptors with reasonable regularity.
- The claimant also suffered
from depression and had been awarded 3 points under the mental descriptors
by the approved disability analyst on the basis that sleep problems
interfere with his daytime activities, that he was scared or anxious that
work would bring back or worsen his illness and that he became irritated
by things that would not have bothered him before he became ill. The
approved disability analyst has, as usual failed properly to address the
question whether the claimant’s mental condition prevented him from
undertaking leisure activities previously enjoyed in that it fails to
address the question of what leisure activities the claimant had
previously enjoyed. The question whether mental stress was a factor in
making him stop work is also not answered, as the disability analyst has
sought to do by saying that the claimant has not worked in the last 5
years.
- Other answers to the
mental descriptor questions by the disability analyst also show a lack of
logic, and the statement at p.10 by the disability analyst “States that he
has stopped using heroin but is now dependent on heroin” is incomprehensible.
None of this is addressed in the statement of reasons.
- I do not propose to go
into the defects in the statement of reasons in any detail here. The new
tribunal will need to make appropriate findings of fact in relation to the
claimant’s physical and mental problems and their effect on his ability to
perform the relevant descriptors. It will also need to address the
exceptional circumstances provisions of regulation 27 of the Social
Security (Incapacity for Work) (General) Regulations 1995, and in particular
to consider whether the evidence of renal failure on several occasions
means that the claimant is suffering from a severe life threatening
disease which is uncontrollable or, with reasonable cause, uncontrolled by
a recognised therapeutic procedure.
(signed
on the original) Michael Mark
Judge of the Upper Tribunal
16 May 2013
