THE UPPER TRIBUNAL Appeal No.  CE 2541 2010

ADMINISTRATIVE APPEALS CHAMBER

 

PJ v SSWP (ESA)

 

DECISION

 

The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. I refer the appeal to a new tribunal to decide the appeal again in accordance with the following directions.

 

Directions for new hearing

 

A The new hearing will be at an oral hearing.

 

B The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.

 

C The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.

 

D The parties are to provide the tribunal within one month of the issue of this decision with any relevant papers held by that party dealing with the history of the appellant’s claims for employment and support allowance or incapacity benefit or similar since July 2007 and any relevant medical evidence for the period from July 2007. 

 

E Subject to any request by the parties or direction by the tribunal, the record of proceedings and statement of reasons for the decisions taken by the First-tier Tribunal are to be excluded from the papers put to the new tribunal.

This is because they are not limited to consideration of this appeal but include consideration by another tribunal of another appeal.

 

F If the appellant has any further written evidence in addition to the above  to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.

 

These directions are subject to any later direction by a tribunal judge.

 

REASONS FOR DECISION

 

1 This decision concerns one of two appeals heard together by a first-tier tribunal. They were taken together by the tribunal concerning two separate decisions made for the Secretary of State for Work and Pensions about benefit entitlement of the appellant (J):

 

1.1 The ESA appeal. On 18 07 2009 a decision maker acting for the Secretary of State superseded a decision awarding Employment and Support Allowance (“ESA”) to J on the ground that he was no longer to be treated as having limited capability for work (“the ESA decision”). J had been awarded ESA from 27 03 2009, apparently because of post-operative problems. That is the subject of this decision.

 

1.2 The DLA appeal. On 5 09 2009 a decision maker acting for the Secretary of State refused to award disability living allowance (“DLA”) to J in respect of a claim made on 11 06 2009 (“the DLA decision”). That is a decision dealt with by me separately under file number CDLA 2539 2010.

 

The hearing by the First-tier Tribunal

2 J requested oral hearings of both the appeals to the First-tier Tribunal. Both came before a tribunal in the same session on 26 03 2010. The records of proceedings of the tribunal hearing show that the tribunal hearing the appeal against the ESA decision consisted of Judge Sansam and one member. It states the start and finish time for the tribunal but refers to the other record of proceedings for the full record. There is a separate full record of proceedings of the appeal against the DLA decision. This states that the judge sat with two other members, the third member being the disability qualified member. At the start of that record of proceedings it is stated that:

 

… if [J] has no objection will hear both appeals tog, but [the disability qualified member] will not take part in decision on ESA although she will take account of all his evidence when contributing to the DLA decision.”

It records that J had no objection to this way of dealing with the appeals. The single record of proceedings that follows indicates no clear distinction between the evidence and submissions for the ESA decision and those for the DLA decision.

 

3 The tribunal dismissed both appeals. The judge later provided a single statement of reasons for the two decisions, which I discuss below.

 

The factual background

4 I refrain in these reasons from commenting on factual matters that are specific only to one of the two appeals before me. For the reasons below, my decisions are to set aside the two decisions made by the First-tier Tribunal in this and the other decision and refer them to separate tribunals. My decision in the other appeal adopts the reasons set out here. The record to date has confused the two appeals in a way that should not have occurred. While I give a common set of reasons for these decisions because of that, I refrain from comments specific only to one of the appeals. I refer to the factual background to these appeals only to the extent necessary to deal with the issues involved in this decision. It will be for the new tribunals to consider the appeals entirely afresh on the evidence properly before them. For this reason, the common record of proceedings and statement of reasons given by the First-tier Tribunal in these appeals are to be excluded from the record presented to the new tribunals.

 

5 The ESA decision was a supersession decision as discussed below. J confirmed that the DLA claim was a new claim. J was not aware of that allowance until advice was taken about the decision stopping the payment of ESA.

 

6 J was seen by a registered general medical practitioner on 15 07 2009. The resulting computer-based ESA85 report formed the evidential basis for the decision stopping ESA for J. J’s representatives wrote to J’s general practitioner asking for comments on specific physical limitations and on J’s mental health. The general practitioner was unable to confirm specifically the physical limitations save that they were consistent with the injuries. He gave details of mental health problems. The representatives produced a short submission for the tribunal contending that J had relevant specific physical and mental health limitations.

 

7 The claim form for DLA was completed a week after the ESA85 report was made. It claims needs that required consideration of both the lower rate of the mobility component and the care component. Representatives then acting for J submitted the evidence obtained from the general practitioner for the ESA decision as evidence in this appeal, with a supporting submission. They made no other submission about the ESA appeal in the context of the DLA appeal.  

 

8 The full record of proceedings states that J attended the tribunal with a friend, but was not represented. The Secretary of State for Work and Pensions was not represented.

 

The decisions under appeal

9 The tribunal issued a single full statement of reasons setting out the findings and reasons for the DLA decision and then those for the ESA decision. With regard to the ESA decision, the tribunal accepted that J had a limited ability with a physical descriptor. The statement ends with a separate paragraph in bold emphasising that the disability qualified member did not take part in “this decision”, which I take to mean the ESA decision.

 

Grounds of appeal

10 The main ground of appeal submitted by those now representing J was that the tribunal heard the two appeals, ESA and DLA, concurrently and not consecutively. This was, it was submitted, a breach of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 (“the Composition Order”). The representatives assumed from the record that the tribunal heard both appeals with all three members present before deciding either appeal. The representatives also submitted that the tribunal had failed to deal adequately with the differences between the two appeals, for example with regard to dates and that it gave inadequate reasons for the two decisions when considered separately.

 

11 Permission to appeal was given by a First-tier Tribunal judge because these grounds of appeal raised important issues affecting not only these appeals.

 

12 On first considering the appeals, I directed a full submission for the Secretary of State for Work and Pensions. In summary, that submission supported the appeal for J with regard to the ESA decision, but not with regard to the DLA decision. More generally, the submission on the general issue of the tribunals sitting together was that the tribunal did not err in law in proceeding in the way it did. The Secretary of State invited me to set aside the ESA decision, replacing it with the correct decision, and to confirm the DLA decision.

 

13   In response to that submission, J’s representatives made a series of related points. The first was to question whether the disability qualified member had been supplied with the papers for the ESA decision or had seen them. They submitted that the disability qualified member should not have heard the ESA decision evidence as a matter of course. With regard to the hearing, that should have been separated between the separate appeals – not merely a separation for the decision making. There was a total absence of any indication in the papers as to why the appeals were heard together, and of whether there had been any case management direction. The power of the tribunal to hear two or more appeals together was a power to deal with common issues (Rule 5(3)(b) of the Tribunal Procedure (Social Entitlement Chamber) Rules 2008 (“The Rules”)). In hearing these cases together the tribunal had failed to identify the common issues separately from the different issues, such as dates. The representatives again emphasised that if the tribunal’s record was segregated between the statements and record relevant to the ESA appeal and those for the DLA appeal, both were inadequate. There should have been separate decisions, records and statements.

 

The composition of the tribunal

14 As both representatives are plainly aware, the First-tier Tribunal is under considerable pressure in hearing ESA appeals and related appeals, and it is clearly in the interests of all concerned that tribunals deal with appeals efficiently as part of the duty to act fairly and justly. That is emphasised in rule 2 of the Rules and the common rules of procedure of all the First-tier Tribunal and Upper Tribunal Chambers. But that rule ((2)(2)(e)) itself include a word of caution - this means “avoiding delay, so far as compatible with proper consideration of the issues”.  There is obviously considerable advantage in considering multiple appeals by a single appellant against decisions of the same respondent at the same session of a tribunal. The question here is whether there was proper consideration of the issues. 

 

15 The most important aspect of that is whether the appeals were heard by the required tribunal. Schedule 4 to the Tribunals, Courts and Enforcement Act 2007 provides that the constitution of individual tribunals is to be in accordance with an Order of the Lord Chancellor. Article 2 of the Composition Order states that the composition of a First-tier Tribunal must be determined by the Senior President of Tribunals.

 

16 The Senior President so determined in his Practice Statement on Composition of tribunals in social security and child support cases in the social entitlement chamber on and after 3 November 2008”. Paragraph 4 of that statement states that a tribunal dealing with a DLA appeal must contain three members, subject to stated exceptions. Paragraph 5 states that, again subject to stated exceptions, a tribunal dealing with ESA appeals must consist of two members. None of the exceptions are relevant to these appeals.

 

17 The operative word in the Senior President’s Practice Statement is “must”, reflecting the use of the same term in the Composition Order. None of the exceptions listed in the Practice Statement apply in this case. No discretion is delegated either to the tribunal or any tribunal judge to vary the composition, by consent or otherwise.

 

18 To what does the Composition Order apply? It refers (in Article 2) to “the tribunal who are to decide any matter”. The Practice Statement refers in paragraphs 4 and 5 to “the appeal” and in paragraph 6 to “any other case”. In my view that language refers to the whole decision-making process of a tribunal when hearing and considering an appeal in a particular session, whether making case management decisions, hearing evidence, considering papers, finding facts or reaching any procedural, provisional, or final decision on them. Paragraph 10 of the Practice Statement makes express provision for a judge acting alone to make decisions under or in accordance with specific rules in the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008. That deals with most case management issues, and would apply, for example, to a direction ahead of listing that these two appeals be heard at the same session by the tribunal. But that is a limited power. It does not deal with the full hearing of an appeal, and it does not provide power for the tribunal to alter its own composition.

 

Application to these appeals

19 In these cases the tribunal heard the two appeals together, rather than consecutively. That is a breach of the Composition Order. It is beyond question that “the tribunal” could hear the appellant’s appeals at the same session, and that different tribunals can have overlapping membership if they proceed correctly in handling each appeal. But that is not what happened here. Correct procedure involves, above all, correct composition. Was the tribunal correct in saying that the disability qualified member did not take part in the ESA decision? The record shows that the tribunal interpreted this as meaning that all three members could take part in all aspects of the hearing, but that only two members could take part in the actual ESA decision. That is too narrow a view. For the reasons set out above, the Composition Order applies to the whole process on the hearing day not merely the final decision making. 

 

20 That is not merely formality. It reflects the need to ensure that tribunals hear issues fairly and justly in accordance with the Rules and using “particular skills, expertise or knowledge” (Rule 2(2)(b) of the Rules). It cannot be assumed that a disability qualified member has any relevant expertise about ESA. And, as J’s representatives submitted, the tribunal can hear the appeal properly only if all its members have equal access to all the submissions and evidence for that appeal, and only to that evidence.

 

The DLA decision

21 What papers did the disability qualified member see for the DLA appeal? The papers provided to the tribunal for considering the DLA decision included only the general practitioner comments on the ESA decision. There was no medical evidence in the DLA appeal papers apart from that letter from the general practitioner. It is not easy to tell from the official decision on file whether the DLA decision maker had access to the ESA evidence, but it would appear not. The explanation shown in the papers for the decision is: “Evidence used: Disability Codes: Main disability code P40; Secondary Disability Code F41; Evidence Code 1; Claim pack.” The accompanying letter states that the decision was made on the basis of the claim pack only. The reconsideration of the decision under appeal appears to have taken place on the same day as the original decision and before the decision was issued to Mr J, so adds nothing of value.

 

22 The implication is that the tribunal deciding the DLA appeal could not rely on the ESA85 unless it was submitted in evidence by one of the parties (which it was not) or the tribunal specifically directed it to be put in evidence in the DLA appeal (which the representatives contend did not happen) and in any event provided that the disability qualified member had full and equal access to it  (which the representatives contend also did not happen) and that both parties had notice of all the evidence being considered (which the Secretary of State did not and the appellant was not warned about by the tribunal). Otherwise, the tribunal should have decided the DLA appeal on the uncontested evidence of the appellant as tested at the hearing without reference to the ESA85.

 

23 The record of proceedings indicates that the tribunal decided the DLA appeal before the ESA appeal. That is a clear error on the face of the statement of reasons, itself concealing another error. The clear error is that the tribunal relied on evidence from the ESA medical examination for its findings when that evidence was not properly before it and had been contested, but not tested, in an appeal at the time of that decision. The concealed error is that the challenge to the ESA85 was seen by some members of the DLA tribunal but not all of them.

 

24 This case also illustrates that evidence in an ESA85 report can only be tested by an ESA tribunal. J raised a number of specific objections to the findings by the doctor in the ESA85. The ESA tribunal did not accept some of those objections, but it did accept others. Only when the ESA tribunal had made those findings could the DLA tribunal consider the evidence from the ESA85 properly, (again assuming it was in evidence when the DLA appeal was considered). Put another way, until the ESA decision was made, there were unresolved conflicts of evidence about the findings in the ESA report which the DLA tribunal was unable to resolve. It follows that if the DLA decision was made before the ESA decision, as the statement of reasons indicates, then it was wrong in law.

 

The ESA decision

25 Those practical problems did not affect the evidence for the ESA decision. Leaving aside the issue of composition, was this decision taken properly? Again, I avoid specific details. The history strongly suggests that J had been claiming ESA or incapacity benefit for some time. The official submission on the ESA decision contains no details of that history. The decision before the tribunal was, in effect, a decision by the Secretary of State that J had now sufficiently recovered from previous problems to be regarded as no longer capable of limited work only. It was a supersession decision, with the burden of proof on the Secretary of State to indicate the improvements. This required consideration of the history – a history absent from the papers. That points to the need for a chronological view of the evidence.

 

26 There is nothing in the statement of reasons dealing with this aspect of the ESA appeal. It reads much the same as the statement for the DLA decision, which was of course a decision on a new claim.  Did the tribunal have in mind that the ESA decision was a supersession decision? It is not clear that it did. The representatives were right to draw attention both to inadequacy in the ESA decision and a failure to distinguish between the two appeals in the grounds of appeal.  Further, it is not possible to tell from the record of proceedings whether the questions put by the disability qualified member influenced the tribunal hearing the ESA appeal. That may have happened.

 

27 The representatives also argued that it erred on another chronological issue. The two tribunals needed to have in mind when the respective ESA and DLA decisions were made as circumstances may have changed between the dates of the two decisions. While the two original decisions were not separated by a long interval, I agree with the representatives that the tribunal appears to have failed to have any clear time frame in mind when viewing these decisions.

 

28 The Secretary of State’s representative raised a narrower but related point. In is submission the tribunal, following the Secretary of State, made the supersession decision from the wrong date. The formal decision was dated 20 07 2009. it should have been 18 07 2009. I agree. The tribunal in ifs formal decision confirmed the decision of the Secretary of State by reference to the date of the decision only, but in doing so confirmed the operative date of the decision. That date, put at 20 07 2009, was wrong and should have been 18 07 2009. I draw this to the attention of the tribunal to which the ESA appeal is referred.

 

Conclusions

29 These appeals must be reheard by correctly constituted tribunals. Accordingly I formally give separate decisions for the two tribunals and separate directions. But I also recognise that it is for the First-tier tribunal to deal with its own procedure. So I leave as a suggestion only that issues I have not discussed in this decision may suggest that the ESA appeal could conveniently be heard by an ESA tribunal and that the DLA appeal could then be heard. I see no reason why the same judge and medical member should not hear both appeals, although they will need to indicate to the disability qualified member (preferably at a hearing with any party present who wishes to be present) the findings on the ESA appeal relevant to the DLA appeal. No assumption should be made that anything in the ESA appeal is evidence in the DLA appeal unless that has been made clear to all concerned, and all involved have full copies of that evidence.

 

30 As argument before me reflected the concern of the First-tier Tribunal about the way these cases were heard, I add the following more general comments where a DLA or similar appeal falls to be decided in the same session as an ESA or similar appeal. 

 

31 Tribunals must always comply with the Composition Order with regard to the hearing of appeals. That applies to the full hearing on the day of any oral hearing, not merely the decision-making after a hearing. That prevents a common hearing of the two appeals. While tribunals have power to waive aspects of their procedures, particularly if parties consent, they cannot alter their composition.

 

31 Where appeals listed in a single session have both a common appellant and a common respondent but require different constitutions, it is relatively easy for the judge and the medical member to hear an ESA appeal either before or after the three members hear a DLA appeal. In some cases, there may be a natural order for the two cases to be considered, for example for chronological reasons. The order is a matter for case management directions or for the tribunal on the day, and of course an explanation to the appellant.

 

32 In deciding the order, tribunals should have in mind that the disability qualified member will not have seen the evidence and submissions for the ESA decision before the hearing unless they have been incorporated expressly into the DLA papers. More generally he or she may have no expertise in such matters. He or she should not take part in the hearing of the ESA appeal. If he or she is present during the ESA appeal hearing it is in the formal sense only as a member of the public.

 

33 Although there is a common respondent, in practice this may be in name only. The tribunal should have in mind that different parts of the Department for Work and Pensions are often not aware of actions of other parts of the Department related to a single claimant. Assumptions should not be made about what is actually in evidence in separate appeals in the same session if evidence for one appeal has not been put in evidence or referred to in the other appeal by either party or any case management direction. Tribunals should take care not to rely in one appeal on evidence contested in another appeal until the contested issues have been resolved and it is accepted that that evidence and any the tribunal findings about it are in issue in the other appeal.

 

34 Separately constituted tribunals should make separate decisions, and should ensure that the relevant parts of any record of consecutive proceedings are separate and any statements of reasons are separate. That will ensure that only the appropriate evidence is considered in each appeal and that separate consideration is given to issues that are not common to the appeals. Failure to do that causes problems on any further appeal on either or both the decisions and, as here, can cause problems for any rehearing.

 

David Williams

Upper Tribunal Judge

7 06 2011

 

[Signed on the original on the date stated]