DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

 

The decision of the Chester First-tier Tribunal dated 18 November 2011 under file reference SC123/11/01678 involves an error on a point of law.  The First-tier Tribunal’s decision is set aside.  The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the appellant’s appeal against the Secretary of State’s decision dated 18 July 2011 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below. 

 

This decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

 

DIRECTIONS

 

The following directions apply to the hearing:

 

(1) The appeal should be considered at an oral hearing. 

 

(2) The new First-tier Tribunal should not involve the tribunal judge or medical member who was previously been involved in considering this appeal on 18 November 2011.

 

(3) The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision by the Secretary of State under appeal (namely 18 July 2011).

 

(4) If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the tribunal within one month of the issue of this decision.  Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above). 

 

(5) The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal.  Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

 

 

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

 

The Upper Tribunal’s decision in summary

 

1. The appellant’s appeal to the Upper Tribunal is allowed.  The decision of the First-tier Tribunal involves an error on a point of law.  For that reason I set aside the tribunal’s decision.

 

2. The case now needs to be reheard by a new First-tier Tribunal (FTT). I cannot predict what will be the outcome of the re-hearing.  The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the re-hearing of the appeal before the new FTT will succeed on the facts.  So the new tribunal may reach the same, or a different, decision to that of the previous tribunal.  It all depends on the findings that the new tribunal makes.

 

The proceedings before the Upper Tribunal

 

3. For the benefit of the FTT, I should explain that, in giving permission to appeal, I commented as follows:

 

‘1. The grounds of appeal, as set out by the appellant, are arguable, in part at least.  I would just add that the First-tier Tribunal (FTT) cannot be criticised for not having regard to medical evidence which was not before it (and indeed was not even available at the time in question). Such new medical evidence might well support a fresh claim for benefit.  That said, it seems to me that there are at least four potential problems with the FTT’s decision.

 

2. First, rule 27 of 2008 Rules provides that “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.”

 

3. True, the applicant here had opted for a “paper hearing”.  He may, of course, have assumed that he was bound to succeed given the result of the earlier medical.  However, in MM v Secretary of State for Work and Pensions [2011] UKUT 334 (AAC) Judge Mesher held, in effect, that where the FTT does not hold an oral hearing, and there is no record of proceedings (as here), then any statement of reasons must deal explicitly with both of the conditions in rule 27(1) of the SEC Rules.  At paragraph 12 Judge Mesher held as follows:

 

“12. It might be objected that that [i.e. setting aside the FTT’s decision for failure to address rule 27(1)] is to require a tribunal to go through an empty technicality, in that the tribunal here plainly did consider that it was able to decide the claimant's appeal without a hearing and that it was fair and just to do so, because that is what it did. It could then be said that it would not have helped the claimant's understanding of matters in any way if the tribunal had simply recited in its statement of reasons what could be a meaningless mantra about rule 27(1) and about the overriding objective in rule 2. However, that would in my judgment be to overlook the force of the requirement in rule 27(1) that there is to be an oral hearing in all cases where the proceedings are disposed of unless both of conditions (a) and (b) are satisfied. It is not good enough for a tribunal in the statement of reasons simply to record that the claimant has opted to have his appeal dealt with without a hearing. It is necessary for the tribunal to acknowledge explicitly that it has considered both of the necessary conditions for excluding the duty under rule 27(1) to have a hearing and to give some reasons (which may, in appropriate circumstances, be very shortly expressed) for its conclusion.”

 

4. On that basis it seems to me more than arguable that there may have been an error of law in the tribunal’s approach in the present case.  In other words, the FTT must surely actively consider whether it is able to decide the appeal without the appellant being present at the oral hearing; and the fact that that issue has been considered, together with brief reasons for the tribunal’s decision about how it has exercised its discretion, should be placed somewhere on record. 

 

5. Second, the FTT proceeded on an assumption about the January 2011 medical (which found that the appellant qualified for ESA) which may or may not have been justified.  The FTT should surely at least have considered whether to adjourn to obtain those (recent) papers. It is true that Schedule 2 to the ESA Regulations was radically changed between the two decisions, but the FTT had, for example, no knowledge of the findings of the previous medical, which might well have been relevant in the context of the present appeal, irrespective of which version of the descriptors was in issue.

 

6. Third, the FTT stated that the only issue was incontinence (see e.g. [2] and [9]).  However, the appellant had also referred to problems with manual dexterity (see page 26).  It is true that he may not have met any of the descriptors for that activity, but it was not true to say that there was only one function affected.

 

7. Fourth, the appellant explained in his letter why he felt regulation 29 applied.  He may or may not have been right.  But the FTT simply failed to engage with his argument about the effect of stress.

 

8. The third point alone might well be insufficient to justify giving permission.  However, each of the others alone would justify granting leave.  Indeed, their cumulative effect is such that my present view is that it may be inevitable that the FTT’s decision will have to be set aside and sent back for re-hearing.  Abbreviated case management directions accordingly follow to show what happens next.’

 

4. Mr B A Wilson, who now acts for the Secretary of State in these proceedings before the Upper Tribunal, supports the appeal from the decision of the FTT for those reasons and does not object to the FTT’s decision being set aside. The appellant is understandably also content for me to decide the appeal on that basis.

 

5. The FTT’s decision therefore involves an error of law for the reasons outlined above. 

 

What happens next: the new First-tier Tribunal

 

6. There will need to be a fresh hearing of the appeal before a new FTT. Although I am setting aside the FTT’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether or not the appellant is entitled to ESA.  That is a matter for the good judgement of the new tribunal.  That tribunal must review all the relevant evidence and make its own findings of fact. 

 

7. In doing so, the new FTT will of course have regard to section 12(8)(b) of the Social Security Act 1998.  This states that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added).  This means in this case that unfortunately the new FTT will have to focus on the appellant’s circumstances as at July 2011, and not the position as at the date of the new hearing, a year or more later. 

 

 

Conclusion

 

8. I conclude that the decision of the First-tier Tribunal involves an error of law.  I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).  The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)).  My decision is also as set out above. 

 

9. I simply repeat that the fact that this appeal to the Upper Tribunal has succeeded should not be taken as any indication either way as to the likely outcome of the re-hearing before the First-tier Tribunal.

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 19 June 2012 Judge of the Upper Tribunal