THE
UPPER TRIBUNAL
ADMINISTRATIVE
APPEALS CHAMBER
DECISION
OF THE DEPUTY UPPER TRIBUNAL JUDGE
The appeal is allowed.
The decision of the tribunal
given at Glasgow on 26 February 2009 is set aside because it was erroneous in
point of law. For the reasons to be given, I consider that the purported review
and attempt to amend the original Statement of Reasons, was a nullity and
therefore that what was before me was the original decision in its unamended
form. It is that decision that was erroneous in point of law, because the
Statement of Reasons did not deal with a substantive argument before the
tribunal.
The case is referred to the First
tier Tribunal (Social Entitlement Chamber) for rehearing before a differently
constituted tribunal.
REASONS
FOR DECISION
1.
I am allowing this appeal because the original Statement of
Reasons was inadequate because it did not deal with a substantive argument
before the tribunal. I hold, on the technical grounds set out below, that salaried
chairman acting as the tribunal has not followed the correct procedures under
section 9 of the Tribunal Courts and Enforcement Act 2007 and Rule 40 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber)
Rules 2008, when purporting to review the original decision and accordingly
that his purported review and amendment of the Statement of Reasons was a
nullity.
Factual background
2.
The claimant appealed a decision to supersede her
entitlement to incapacity benefit to the first tier tribunal. The appeal was
refused with a decision issued on 26 February 2009. The tribunal was chaired by
a fee-paid chairman. At the appeal hearing the tribunal
was asked to consider a case for Incapacity Benefit under Regulation 27
of the Social Security (Incapacity for Work) (General) Regulations 1995. The
original Statement of Reasons, issued on 27 March 2009, contained no mention of
a consideration of that case. On 16 April 2009 an application for leave to
appeal was made.
3.
Thereafter, on 25 May 2009 the tribunal issued an additional Statement
of Reasons, signed by the original chairman, in which it stated that “Although
the tribunal considered this [ie the Reg 27 case], it was not included in the
Statement of Reasons. This was an accidental omission.” The tribunal went on to
say “… therefore in terms of Regulation 40 of the First Tier Tribunal (Social
Entitlement Chamber) Rules 2008 do amend the Statement of Reasons by adding at
the end thereof a new Clause 9 …”. A further Decision Notice was issued on 8
June 2009, signed by the salaried judge, acting in terms of the Practice
Statement dated 30 October 2008,, stating that the original decision was
reviewed but not revised and then stating
that pursuant to section 9(4)(b) of the Tribunal
Courts and Enforcement Act 2007 “the reasons for the decision are amended by
the production of a supplementary statement dealing with the above “ [ie the
lack of reasons about the Regulation 27 case]. The Decision notice went on to
say “Permission to appeal is granted because of the importance of the matter
raised …”. On 23 June 2009 the claimant applied to the Upper Tribunal for
leave to appeal against the decision of the Tribunal dated “20-01-2009” [sic].
The law
4.
Section 9 of the Tribunals Courts and Enforcement Act 2007, so far as
material provides:
Review of decision of First-tier Tribunal
9(1) The First-tier Tribunal may review a decision
made by it on a matter in a case, other than a decision that is an excluded
decision for the purposes of section 11(1) (but see subsection (9)).
(2) The First-tier Tribunal’s power under
subsection (1) in relation to a decision is exercisable—
(a) of its own initiative, or
(b) on application by a person who for the
purposes of section 11(2) has a right of appeal in respect of the decision.
(3) Tribunal Procedure Rules [may provide …]
(4) Where the First-tier Tribunal has under
subsection (1) reviewed a decision, the First-tier Tribunal may in the light of
the review do any of the following—
(a) correct accidental errors in the decision or
in a record of the decision;
(b) amend reasons given for the decision;
(c) set the decision aside.
(5) Where under subsection (4)(c) the First-tier
Tribunal sets a decision aside, the First-tier Tribunal must either—
(a) re-decide the matter concerned, or
(b) refer that matter to the Upper Tribunal.
…
5.
Rule 40 of the First Tier Tribunal (Social Entitlement Chamber) Rules
2008 provides:
Review of
decision
40.—(1) This rule does not apply to asylum support cases or criminal
injuries compensation cases.
(2) The Tribunal may only undertake a review of a
decision—
(a) pursuant to rule 39(1) (review on an application
for permission to appeal); and
(b) if it is satisfied that there was an error of law
in the decision.
(3) The Tribunal must notify the parties in
writing of the outcome of any review, and of any right of appeal in relation to
the outcome.
(4) If the Tribunal takes any action in relation
to a decision following a review without first giving every party an
opportunity to make representations, the notice under paragraph (3) must state
that any party that did not have an opportunity to make representations may apply
for such action to be set aside and for the decision to be reviewed again.”
The law and the procedure
to be followed by a tribunal
6.
It is clear that a tribunal may review a decision made by it – section
9(1). In terms of paragraph 11(a) of the Practice Statement dated 30 October
2008 issued by the Senior President of Tribunals, any application for
permission to appeal under Rule 38 of the 2008 rules and the exercise of the
power of review under section 9 of the 2007 Act must be carried out by a
salaried judge where the decision was made by a fee-paid judge. This makes for
difficulties as outlined in this decision.
7.
Relevant to the present case, under Rule 40(2) a review may only be
undertaken by the tribunal pursuant to Rule 39(1) where there has been an application
for permission to appeal and “(b) if it is satisfied that there was an error of
law in the decision.” Where a tribunal has reviewed a decision, under section
9(4) it has three things that it may do – it may:
“(a) correct accidental
errors in the decision or in a record of the decision;
(b) amend reasons given for
the decision;
(c) set the decision aside”.
It is important to note that a
review may only be carried out where the reviewing salaried chairman is
satisfied that there is an error of law in the decision. Further I consider the
review powers are cumulative and not exclusive so the tribunal may do one or
more of them on a review.
8.
In relation to amending a Statement of Reasons, where there has been an
application to appeal, I consider that the process has to be that there has
been an application to appeal and then on looking at the appeal, the reviewing tribunal
[the salaried judge in terms of the Practice Statement] determines that there
has been an error of law. That error of law may be that the Statement of
Reasons is inadequate and therefore there is an error of law. Having made that
decision, the tribunal may then consider whether or not to amend the Statement
of Reasons. It has no power to amend the Statement of Reasons until it has
identified an error of law. Once the Statement of Reasons has been amended, the
tribunal has to decide whether or not to set the original decision aside.
9.
However, it is important to note Rule 40(4) which makes clear that
parties should in general be given a right to make representations before “any
action is taken in relation to a decision following a review”. This is implicit
in rule 40(2). If parties are not given an opportunity to make representations
at that stage, then they are to be notified under rule 40(3) that they “may
apply for such action to be set aside and for the decision to be reviewed
again”. Further under Rule 40(3) “The Tribunal must notify the parties in
writing of the outcome of any review, and of any right of appeal in relation to
the outcome”.
10.
It is clear that where the original tribunal was chaired by a fee-paid
judge, but the review is being carried out by a salaried judge that the
salaried judge is in no position to amend the reasons given for the decision,
because he was not at the tribunal hearing. I consider that the practical
solution is that if the salaried judge determines that there is an error of law
and considers that the error of law might be rectified by amending the
Statement of Reasons, he should seriously consider giving the parties an
opportunity to make representations as to whether or not the original tribunal
should be given an opportunity to amend the Statement of Reasons. As Deputy
Judge White in [2009] UKUT 163 (AAC) [CDLA/1291/2009] states at paragraph 27 if
an amendment of a Statement of Reasons is likely to lead to the same adverse decision
then the procedure for allowing parties to make representations should be followed
carefully.
11.
If, following representations, the salaried judge determines that the
tribunal should be given such an opportunity, then the appeal should be
remitted to the fee-paid chairman to determine whether or not to amend the
Statement of Reasons together with a note of any representations made to the
salaried judge. In light of the Practice Statement, the salaried chairman having
received any proposed amendments to the Statement of Reasons from the fee-paid
judge, if so advised, the salaried chairman should the take the action to amend
the Statement of Reasons. If it is a salaried judge reviewing his own decision,
then I consider that before he amends his Statement of Reasons, he should
consider giving the parties an opportunity to make representations as to
whether or not he should amend the Statement of Reasons.
12.
My comments about giving an opportunity to make representations before
any action is taken following a review applies equally to the other powers
under section 9(4)(a) [correct accidental errors] and (c) [set the decision
aside], although considerations that this should be done may be less pressing
than they would be in circumstances where amendment of a Statement of Reasons
is being considered.
13.
If the reviewing judge determines not to ask for representations, before
he takes any action, including the action of amending the Statement of Reasons,
then, in terms of Rule 40(4), he must notify the parties of the outcome of the
review and that notice given under Rule 40(3) must state that any party may
apply for such action to be set aside and for the decision to be reviewed
again. The parties are then free to either to seek a set aside or to consider
applying for leave to appeal.
Procedure followed by the reviewing
tribunal [the salaried chairman]
14.
There is no right of appeal under section 11(1) of the 2007 Act, by
reason of section11(5)(d) against a decision of the First-tier tribunal “(ii)
to take not action, or not to take any particular action, in the light of a
review of an earlier decision”. This implies that there is a right of appeal
against a decision of the tribunal, in a review, to take a particular action –
in this case to amend the Statement of Reasons. However, I do not require to
determine whether or not that is so, because I have held that the purported
review and amendment procedure was a nullity.
15.
I hold that the review procedure before the First-tier tribunal was a
nullity for two reasons. First, the purported amendment of the Statement of
Reasons came before there was a decision that there was an error of law in the
original decision. Secondly, the notice under Rule 40(3) failed to comply with mandatory
requirement in Rule 40(4) that “the notice under paragraph (3) must state that
any party that did not have an opportunity to make representations may apply
for such action to be set aside and for the decision to be reviewed again.”.
16.
I am of the opinion that by amending the Statement of Reasons on 25 May
2009 and then issuing a review decision on 8 June 2009, that the tribunal has
not followed the correct procedure outline above; - ie that the tribunal ought
to have identified that there was an error of law and determined therefore that
the tribunal could review the decision. Only then could the tribunal exercise
the power to amend the Statement of Reasons. It appears to me that the decision
issued on 8 June 2009 was an attempt to correct that fundamental error. The
purported amendment of the Statement of Reasons took place before the salaried
Chairman had made a determination that the original decision contained an error
of law. This is a breach of Rule 40(2)(b) and section 9(4) of the 2007 Act,
which only gives a power to amend the Statement of Reasons where the decision
has lawfully been reviewed, in terms of Rule 40(2). I consider this renders the
purported review a nullity.
17.
The question then also arises as to the consequences of a failure to
comply with Rule 40(3) and (4). In my opinion that is also fatal to the review procedure
followed by the tribunal, because the parties were not alerted to their right
to seek a set aside of that action [the amendment of the Statement of Reasons] and
for the decision to be reviewed again - London & Clydeside Estates Ltd v
Aberdeen District Council 1980 SLT 81 (HL). In the London &
Clydeside case an application was made for a certificate of alternative
development under section 25 of the Land Compensation (Scotland) Act 1963. In order to comply with the Town and Country Planning (General
Development) (Scotland) Order 1959, art. 3 (3) the certificate ought to have included
a statement of the rights of appeal to the Secretary of State, but it did not.
Lord Hailsham, the Lord Chancellor said:
“Was this
requirement, which has the authority of Parliament behind it, mandatory or was
it in some sense directory only? I have no doubt that it was mandatory, and
that the failure to include this information was fatal to the certificate. …
The validity of the certificate itself is in question, and if, as I believe,
the requirement is mandatory, the certificate falls independently of whether
the appellants were in fact misled. I find it impossible to accept that a
requirement by an instrument of statutory force designed for the very purpose
of compelling a public authority to inform the subject of his legal rights can
be treated as simply regulatory if the requirement is not complied with. If I
required authority for this proposition I would refer to Agricultural,
Horticultural and Forestry Industry Training Board v. Kent, Rayner v.
Stepney Corporation and Brayhead (Ascot) Ltd. v. Berkshire C.C.
notwithstanding that it relied on Edwick v. Sunbury-on-Thames U.D.C.
which was disapproved in James v. Secretary of State for Wales, which
was decided on an argument irrelevant to the present appeal. However, I am
content to assert a general principle to the effect that where Parliament
prescribes that an authority with compulsory powers should inform the subject
of his right to question those powers prima facie the requirement must be
treated as mandatory.”
18.
Following the reasoning in London & Clydeside I consider that
Rule 40(3) and (4) is mandatory. Both rules use the word “must” in a Statutory
Instrument. Under Rule 40(4) the notice under Rule 40(3) “must state that any
party that did not have an opportunity to make representations may apply for
such action to be set aside and for the decision to be reviewed again”. I
consider the “must” is mandatory and therefore that failure to comply with Rule
40(4) renders the review process a nullity and therefore what is before me is
the original decision with its unamended Statement of Reasons.
In CDLA/1291/2009 the Deputy
Judge of the Upper Tribunal held that there was an invalid review [paragraph
30] and went on to say [paragraph 31] that as he was allowing the appeal for
other reasons he did not “need to decide, what, if any consequences flow from
the invalid review.” In CSIS/272/09 Judge of the Upper Tribunal Gamble did not
have to decide this issue, but followed the suggestions of the parties that he
proceed upon the basis of the amended Statement of Reasons, because both agreed
that the decision was defective, whether or not the unamended or amended
Statement of Reasons was considered. Mr Gamble said “It is thus unnecessary for
me to decide the question” as to “what remedy should be granted for the defects
in the review”.
The original decision
19.
I therefore turn to the original decision of the tribunal given on
26/02/2009 and to the Statement of Reasons in their unamended form. I am in no
doubt that the Statement of Reasons was inadequate because it did not deal with
the substantive argument about Regulation 27(b) and therefore that the tribunal
erred in law. I therefore set aside this decision and remit to a differently
constituted tribunal to reconsider the appeal.
The power to
amend the Statement of Reasons
20.
I now turn to the power to amend the Statement of
Reasons. This part of my reasoning is not necessary to the decision I have
made, but I make the comment for guidance.
21.
Section 9(4)(b) of the 2007 Act does give the tribunal a power to amend
a Statement of Reasons and therefore supersedes Mr Levenson’s decision in
CA/4297/2004 that it was not competent to amend a Statement of Reasons. The
issue therefore is the circumstances in which such a power ought to be
exercised. Considerable guidance is given in both Barke v SEETEC Business
Technology Centre Ltd [2005] EWCA Civ 578 and English v Emerty Reimgold
& Strick Ltd [2002] 1 WLR 2409. It is clear from those cases that a
tribunal that has failed to give reasons or failed to deal with a particular
point may deal with such a lacuna and provide those reasons. I consider the
same approach applies to a tribunal, which will generally be expected to act
professionally in amending a Statement of Reasons and therefore may, as the
tribunal purported to do in this case, deal with the lacuna. I agree with the
advice given by Deputy Judge White in [2009] UKUT 163 (AAC) [CDLA/1291/2009] at
paragraph 28, which states:
“28. In cases
where (as in this case) the tribunal which decided the case consisted of a
panel of three, any subsequent variation of the statement of reasons must
reflect issues which were discussed by all three members of the tribunal, but
which were then inadvertently not included in the statement written by the
chair of the tribunal. If this is not the case, then the decision will not be
that of the tribunal which heard the case, but in part that of just one of its
members. It would follow that in such cases the chair in revising the statement
of reasons should state explicitly (1) that the issue which is the subject of
revision was expressly considered and discussed by all members of the tribunal,
and (2) what is now added to the statement of reasons represents actual
conclusions of the whole tribunal (rather than something which the chair thinks
they would have concluded if they had considered the point in issue).”
22.
However, a tribunal that has to decide whether or
not to exercise the power to amend a Statement of Reasons should consider
whether or not in the particular circumstances it ought to do so. Where a Statement
of Reasons deals with a point, but in retrospect can be seen to have dealt with
it inadequately or unclearly, then it may be reasonable to amend the reasons to
amplify or clarify the point. If an argument is not dealt with in the Statement
of Reasons at all, then more careful consideration might have to be given to
whether or not the lacuna should be filled by new material in the Statement of
Reasons on this point. The length of time since the hearing might be relevant,
as might be the availability of contemporary material showing what was the
decision and the reasons of the tribunal at the time. These are all matters
upon which the parties might want to make representations, which could be of
assistance to the tribunal in determining whether or not to consider amending
the Statement of Reasons.
Allowance of the appeal
23.
The claimant will see that in allowing this appeal, I have done so on
technical grounds. No inference should be drawn from this decision as to the
possible out come on the merits of the rehearing before a differently constituted
tribunal.
(Signed)
SIR CRISPIN
AGNEW OF LOCHNAW BT QC
Deputy
Judge of the Upper Tribunal
Date:
3 November 2009
