Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decisions of the First-tier Tribunal (made on 6 October 2014 at Hull under references SC950/11/00381 and SC950/12/01838) involved the making of an error in point of law, they are SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the cases are 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 appeals 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 the claimant’s entitlement to a disability living allowance on: (i) her 'renewal' claim, which was refused on 2 December 2010; and (ii) her claim that was treated as made on 11 January 2012 and refused on 11 May 2012

C.        In doing so, the tribunal must not take account of circumstances that were not obtaining at those times: see section 12(8)(b) of the Social Security Act 1998 and R(DLA) 4/05. Later evidence is admissible, provided that it relates to the time of the decisions: R(DLA) 2 and 3/01.

Reasons for Decision

A.        The issue

1.         The issue that arises in these cases is the nature and scope of a rehearing directed by the Upper Tribunal. That includes the nature of the Upper Tribunal’s jurisdiction and the meaning of an issue that is raised by an appeal. I would have thought that those matters were all settled law that was well-understood by the First-tier Tribunal. Apparently not.

B.        The history of the cases

2.         The claimant was receiving a five year award of disability living allowance consisting of the mobility component at the higher rate and the care component at the highest rate when she was invited to submit a rehearing. The Secretary of State refused the 'renewal' claim from and including 1 January 2011. This is case CDLA/0018/2015.

3.         The claimant’s appeal has now been before three different panels of the First-tier Tribunal. The first hearing was on 9 January 2012. The tribunal dismissed the  appeal against the decision on the 'renewal' claim, but gave the claimant permission to appeal to the Upper Tribunal. The decision of this tribunal was given by Upper Tribunal Judge Jupp under reference CDLA/1023/2012. She said that the tribunal’s findings and reasons were adequate in respect of the mobility component at the higher rate and the care component at the highest and middle rates. She found them inadequate in respect of the care component at the lowest rate. Having done so, she gave a decision saying: ‘I set aside the tribunal’s decision and remit the appeal for reconsideration’. She also gave directions, including:

The new First-tier Tribunal must hold an oral hearing and conduct a complete reconsideration of the issues that arise for decision in this appeal, together with any others which merit consideration, subject to the discretion provided by section 12(8) of the Social Security Act 1998.

4.         On the day after the first hearing, the claimant made a new claim for a disability living allowance. This is case CDLA/0022/2015.

5.         The second hearing was on 12 June 2013. The tribunal was now dealing with the appeal against both the decision on the 'renewal' claim and the decision on the new claim. It dismissed the appeals, but I gave the claimant permission to appeal to the Upper Tribunal. The decisions of this tribunal were given by Judge Humphrey under reference CDLA/3853 and 3854/2013. She found the tribunal’s findings and reasoning inadequate in respect of the mobility component at the higher rate. Having done so, she gave a decision saying: ‘I set those decisions aside and remit the appeals … for rehearing’.

6.         The third hearing was on 6 October 2014. Again, the tribunal was dealing with both the 'renewal' claim and the new claim. It dismissed the appeals, but I gave the claimant permission to appeal to the Upper Tribunal. The Secretary of State’s representative supported the appeals and the claimant’s representative had made a ‘no further comments’ reply.

C.        The First-tier Tribunal’s reasoning

7.         The judge’s reasoning dealt with the history of the appeals. Of Judge Jupp’s decision, the judge noted that she had found the first tribunal’s findings and reasons adequate except in respect of the care component at the lowest rate. Of Judge Humphrey’s decision, the judge noted that the second tribunal had dealt adequately with the care component at the lowest rate ‘as UT Judge Humphrey would have stated otherwise in the Judgment’. The judge then said that the third tribunal ‘adopts the said findings of fact and reasons given by the Tribunal held on 09/01/2012 as if set out herein in full in relations to all Components and Rates apart from LRCC.’ Later the judge said:

15.    So, to conclude, the Tribunal, on 06/10/2014, agreed with the two assessments by the Upper Tribunal Judges referred to above in relation to the various components identified in those Judgements. The previous First-tier Tribunals have, in turn, satisfied the Upper Tribunal now with regard to each Component and Rate as explained above and that is why the Tribunal, on 06/10/2014, adopted the findings and reasons given by the previous Tribunals in so far as they have clearly been accepted by the Upper Tribunal.’

D.       How the tribunal erred in law

8.         Where do I begin?

(i)      The tribunal misunderstood the nature of the Upper Tribunal’s jurisdiction

9.         The Upper Tribunal’s jurisdiction derives from sections 11 and 12 of the Tribunals, Courts and Enforcement Act 2007:

11    Right to appeal to Upper Tribunal

(1)     For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.

12    Proceedings on appeal to Upper Tribunal

(1)     Subsection (2) applies if the Upper Tribunal, in deciding an appeal under section 11, finds that the making of the decision concerned involved the making of an error on a point of law.

(2)     The Upper Tribunal—

(a)     may (but need not) set aside the decision of the First-tier Tribunal, and

(b)     if it does, must either—

(i)      remit the case to the First-tier Tribunal with directions for its reconsideration, or

(ii)     re-make the decision.

(3)     In acting under subsection (2)(b)(i), the Upper Tribunal may also—

(a)     direct that the members of the First-tier Tribunal who are chosen to reconsider the case are not to be the same as those who made the decision that has been set aside;

(b)     give procedural directions in connection with the reconsideration of the case by the First-tier Tribunal.

(4)     In acting under subsection (2)(b)(ii), the Upper Tribunal—

(a)     may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and

(b)     may make such findings of fact as it considers appropriate.

10.      It is necessary to consider the different stages of a case before the Upper Tribunal. At the first stage, the issue is whether to give permission to appeal. At this stage, the Upper Tribunal’s jurisdiction is limited to issues of law: section 11(1). At the second stage, the issue is whether the decision was in error of law: section 12(1). At the third stage, the issue is how the tribunal should dispose of the case. It is only at this stage that the possibility of making findings of fact arises. It arises expressly under section 12(4)(b), if the tribunal decides to re-make the decision under section 12(2)(b)(ii). It may also arise if the tribunal decides to remit the case under section 12(2)(b)(i). I come to this later, under head (iii) below

11.      This analysis is important, because when Judge Jupp was commenting on the first tribunal’s reasoning, she was at the second stage. She was considering whether the tribunal’s decision was in error of law other than in respect of the care component at the lowest rate. Her choice of language puts that beyond doubt. She referred to the First-tier Tribunal’s findings and reasons as ‘adequate’, which is the legal standard required of reasons. She did not say that the first tribunal’s decision was correct. That was not part of the jurisdiction she was exercising at that stage. All the judge was doing, and all she was called upon to do at that stage, was to decide that the First-tier Tribunal was entitled to make the decision that it did. Nothing more. She was not saying that the decision was ‘right’. Reading her decision as a firm basis for fact-finding in the First-tier Tribunal was to proceed on a false premise.

(ii)     The tribunal misunderstood how the Upper Tribunal exercises its jurisdiction for error

12.      The Upper Tribunal does not necessarily deal with every potential error of law that arises on an appeal. The judge must do what is sufficient to justify setting a decision aside and remitting the case for rehearing, but will not necessarily deal with other possible errors unless they involve an issue that is controversial or one that requires directions to the First-tier Tribunal for a rehearing. It was, therefore, a mistake to infer from Judge Humphrey’s failure to comment that she was approving what the tribunal had done at the second hearing. This was another false premise. The Upper Tribunal often proceeds on the unspoken basis that any other errors of law will be subsumed by the rehearing. 

(iii)    The tribunal misunderstood the nature of a rehearing

13.      What both Judge Jupp and Judge Humphrey did was to set aside the decisions and remit the cases for rehearing. What did that involve?

14.      Judges sometimes limit the scope of their remittal. This is authorised by section 12(2)(b)(i), which provides for the Upper Tribunal to give directions for reconsideration. There are two approaches. One approach is to impose a legal limit on the issues that the tribunal may consider. For example: the judge might direct that only the mobility component is in issue at the rehearing. This is a permissible approach, which has been approved in a variety of contexts: Aparau v Iceland Frozen Foods plc [2000] ICR 341; Jones (t/a Shamrock Coaches) v Department of Transport Welsh Traffic Area [2005] EWCA Civ 58; Way v Poole Borough Council [2007] EWCA Civ 1145; Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195 at [15]; Burrell v Micheldever Tyre Services Ltd [2014] EWCA Civ 716 at [20].

15.      Perhaps a more common approach is for judges to say that the First-tier Tribunal may accept certain conclusions of the previous tribunal unless the parties argue otherwise. For example: the judge might direct that the tribunal may accept the previous tribunal’s award of the mobility component at the higher rate unless the Secretary of State argues otherwise.

16.      There is nothing in the decisions given by either Judge Jupp or Judge Humphrey to show that they had in mind either of those possibilities. There was nothing to justify the First-tier Tribunal taking any other approach than that spelt out by Judge Jupp when she said that the tribunal must undertake ‘a complete reconsideration of the issues’. I will spell out what that entails.

·                The rehearing is not limited to the grounds on which the judge set aside the tribunal’s decision. The tribunal will consider all aspects of the case, both fact and law, entirely afresh.

·                The tribunal will not be limited to the evidence and submissions before the tribunal at the previous hearing. It will decide the case on the basis of the relevant evidence and submissions made at the rehearing.

·                The tribunal must come to its own conclusions on issues of both fact and law that it considers. Neither the Upper Tribunal’s decision itself nor anything in the judge’s reasons for decision is an indication of the likely outcome of the rehearing. Nor will the tribunal be bound by any conclusions of fact or law reached by the previous tribunal in the decision that the Upper Tribunal has set aside.

If authority is needed for this, it is to be found in the decision of the Tribunal of Commissioners in R(IB) 2/04 at [25].

17.      In making its decision at a rehearing, the First-tier Tribunal may adopt, or incorporate by reference, the findings made by the previous tribunal as a way of recording its conclusions. That is merely a matter of convenience. It must also take account of the evidence that was before that tribunal, whether or not given orally, and may find it more reliable as being more contemporaneous. That is part of its duty to take account of the evidence as a whole. But what the tribunal must not do is to regard itself as bound by the earlier tribunal’s conclusions or to treat them as effectively approved by the Upper Tribunal’s decision directing the rehearing.

18.      I have considered whether the tribunal was merely adopting the convenient shorthand of explaining why it had reached the same conclusion as the previous tribunals. There are passages in the reasons that support that approach. However, the reasons as a whole put the matter beyond doubt. That is not what the tribunal was doing. Paragraph 15 in particular makes it clear that the tribunal’s reasoning was, at least in part, based on a fallacious approach to the decisions of Judge Jupp and Judge Humphrey.

 (iv)   The tribunal misunderstood the scope of its duty to consider the issues raised by the appeal

19.      This is fundamental to the First-tier Tribunal’s function. It has to decide afresh the issues that were before the decision-maker. As a practical matter, it may limit itself to the issues put to it by the parties. That is authorised by section 12(8)(a) of the Social Security Act 1998:

12    Appeal to First-tier Tribunal

…

(8)     In deciding an appeal under this section, the First-tier Tribunal-

(a)     need not consider any issue that is not raised by the appeal; …

As the Tribunal of Commissioners in R(IB) 2/04 said at [32], that provision confers on the tribunal a discretion as to the extent to which it exercises its inquisitorial role, but it is a discretion that has to be exercised judicially. Treating an issue as outside its inquisitorial role by reference to fallacious reasoning from decisions of the Upper Tribunal is not a proper judicial exercise of its discretion.

(v)      One final mistake

20.      This is a small matter. The judge wrote: ‘The Tribunal had in mind the decision in CDLA/528/2010.’ I do not know what that means. I have checked the database and there was such a case, but the Upper Tribunal refused permission to appeal. It may be that the judge has used the wrong number. Or it may be that what ‘The Tribunal had in mind’ was something that was said in the reasons for refusal. Whatever it was, it must have been something important; otherwise the judge would not have troubled to mention the case. I do not know what those reasons are and the judge did not say how this case was relevant. In those circumstances, the reasons fail to explain the tribunal’s reasoning. 

 

Signed on original on 27 July 2015

Edward Jacobs Upper Tribunal Judge