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SE [2009] UKUT 163 (AAC) (19 August 2009)
Tribunal procedure and practice (including UT)
tribunal practice

 


IN THE UPPER TRIBUNAL Appeal No. CDLA/1291/2009

ADMINISTRATIVE APPEALS CHAMBER

Before Robin C A White, Deputy Judge of the Upper Tribunal

Decision: The decision of the tribunal of 7 October 2008 is erroneous in law, and I set it aside. Exercising my power under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, I remit the case for consideration by a freshly constituted First-tier Tribunal at an oral hearing in the light of such guidance and directions as are contained in this decision.

REASONS FOR DECISION

Background and context

1. The appellant, who was born on 25 June 1963, suffers from post traumatic stress disorder, obsessive compulsive disorder, and irritable bowel syndrome. She was in receipt of the lower rate of the mobility component and the middle rate of the care component (on the grounds that she needed constant supervision throughout the day in order to avoid substantial danger to herself or others) of disability living allowance from 14 July 2005 to 13 July 2008.

The appellant made a renewal claim on 20 February 2008. On 7 April 2008 a decision by a decision maker, awarding only the lower rate of the mobility component from 14 July 2008 to 13 July 2011, was notified to the appellant. The letter explained that the decision had been based on information in the claim pack and in a medical report prepared in connection with the appellant's claim for incapacity benefit. In relation to the care component, the notification indicated that the appellant had no attention needs, and, although she was at risk of self neglect, she did not need continual supervision throughout the day to avoid substantial danger to herself or others.

2. On 28 April 2008 the appellant appealed against this decision. She said that her difficulties were the same as when the earlier award was made, and that she needed prompting in relation to a number of daily activities.

The decision was reconsidered on 10 June 2008 by a different decision maker but was not changed.

The appellant elected to have a paper hearing of her appeal.

The appeal first came before a tribunal on 28 July 2008, but was adjourned to enable further medical evidence to be obtained. The appellant was encouraged to attend. A warning was given that entitlement to the mobility component might be in issue.

3. A considerable volume of additional evidence was provided.

The appeal came before the tribunal on 7 October 2008 for a paper hearing, since the appellant had elected not to attend. The outcome was that the decision of the decision maker was confirmed.

4. A statement of reasons was provided on 12 November 2008, and sent to the appellant on 11 December 2008.
5. On 5 January 2009, the appellant, through a representative, requested permission to appeal.
6. On 23 January 2009 the Clerk to the Tribunal wrote to the Chairman of the Tribunal enclosing a handwritten note from the District Judge, which read as follows:

I consider this case should be reviewed under TCE, s.9(4), and statement amended. It appears appellant's timings were not accepted but should Tribunal give most probable timings. Please ask [tribunal chairman] to amend statement.

7. A revised statement of reasons was signed on 10 February 2009 and sent to the parties on 18 March 2009.
8. On 22 April 2009 the District Judge issued a decision refusing permission to appeal which contained the following paragraph:

It is was [sic] appropriate to review the decision because the Statement of Reasons issued on 12/11/2008 did not make findings of facts in relation to time taken with care tasks. As a matter of natural justice the Appellant should be given an explanation as to why her evidence was thought improbable and therefore she did not satisfy the legal conditions of entitlement. The Tribunal Judge has now amended the Statement to clarify this, under Section 9 of the Tribunal Courts and Enforcement Act 2007 and this was reissued on 18/03/09.

9. The appeal now comes before me with the permission of a Judge of the Upper Tribunal. The appeal is not supported by the Secretary of State.

The grounds of appeal

10. The appellant's grounds of appeal taken from the representative's letters of 5 January 2009 and 15 May 2009 are fourfold: first, that the tribunal was wrong to hold a paper hearing and should have adjourned for further evidence; secondly, the tribunal has erred in completely disregarding the evidence in the appellant's claim pack seeking renewal of her award; thirdly, the amendments made to the statement of reasons appear to be those of the tribunal chairman alone and not those of the three members of the tribunal which heard the case; and, fourthly, that too much weight was placed on the time that it was said the appellant needed to complete tasks rather than considering the frequency with which she needed attention throughout the day.

In granting leave the Judge of the Upper Tribunal raised four matters. In relation to the decision of the tribunal to proceed with a paper hearing, the Judge notes that this is a matter for the discretion and good judgment of the tribunal. There had been an adjournment with encouragement for the appellant to attend, but she chose not to do so. Had this been the sole ground of appeal, permission would not have been granted.

11. The ground relating to the process of amendment of the statement of reasons was considered to be arguable.

The ground relating to the tribunal's conclusions on the frequency of the appellant's care needs was considered as arguably the strongest ground of appeal.

12. The Judge also queried whether the tribunal had said enough to meet the requirement to explain why a previous award had not been renewed.

Did the tribunal err in law?

13. I want first to explore the process by which the statement of reasons was amended, and the power of review in section 9 of the Tribunals, Courts and Enforcement Act 2007 was purportedly exercised.

The First-tier Tribunal came into existence on 3 November 2008 on the operation of the Transfer of Tribunal Functions Order 2008 (SI 2008 No 2833).

Section 9 of the Tribunals, Courts and Enforcement Act 2007 makes provision for a First-tier Tribunal to review one its own decisions. Subsection (4)(b) provides that a First-tier Tribunal may amend reasons given for the decision in the light of the review provided by the section.

14. Section 9(3) provides that Tribunal Procedure Rules may make provisions restricting the grounds of review in certain cases.
15. Rule 40 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008 No 2685), provides, so far as relevant to social security appeals:

(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.

16. Those provisions do not appear to have been complied with in the appeal before me. From the bundle before me, the position appears to be as follows. There was no notice to the parties inviting them to make representations on the proposed amendment to the reasons for the decision, nor any document complying with paragraph (4). Indeed, there appears to have been no notice of the revision other than the issue of a revised statement of reasons for the decision (although a note in the backing file indicates that time for seeking permission to appeal should be treated as starting again, and the appellant did renew the application for permission to appeal). There was accordingly, at the very least, a procedural defect in this case.

The purpose of the review procedure under section 9 would appear to be to avoid the need for an appeal where the application for permission to appeal reveals an error of law which can be corrected following a proper review procedure. The reference in section 9 to the power to amend reasons clearly opens the door to revision of the reasons where, as originally drafted, they contain an error of law. The error of law must, however, be identified, since otherwise there is no power under rule 40 to undertake a review of the decision.

Where a review results in recognition of an error of law and the statement of reasons is amended but with the same adverse outcome for the appellant, it seems to me to be particularly important that the procedure for ensuring that the parties are either able to make representations in advance of the review, or to object to the outcome if they are not consulted in advance is followed carefully, even though, in such circumstances, the right to seek permission to appeal remains.

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).

It would not be right in my view for the power in rule 40 to be used in some informal way as a means of adding to the reasons when prompted by an application for permission to appeal, and in order to address issues raised in the application which had not been fully considered by the tribunal in its deliberations.

In this case, I have concluded that there was an invalid review of the original decision since there was no compliance with rule 40(4) of the Tribunal Procedure Rules.

There are, however, other reasons why I have concluded that the tribunal erred in law, and I do not need to decide what, if any, consequences flow from the invalid review.

In this case, the existing award in relation to the care component was based upon the appellant's need for supervision during the day. In her renewal claim pack, the appellant put both a need for attention and a need for supervision in issue. The tribunal has failed to address adequately the question of whether the appellant required supervision to avoid danger to herself; there is merely a passing reference to their conclusion on this issue. Given the basis of the earlier award, this issue required much more consideration in the statement of reasons than is given to it. The tribunal's failure to elaborate on the question of the appellant's need for supervision constitutes an error of law. It is for this reason that I set the decision aside as erroneous in law.

The way forward

17. Despite the significant volume of evidence in the papers, this is not a case in which it is appropriate for me to remake the decision which the tribunal should have made.

I would very much hope that the appellant, perhaps with representation, will be able to attend a new tribunal. This is the sort of case which is very much easier for a tribunal to decide if they have had the opportunity to hear from, and question, the appellant on the extent and nature of her difficulties. I do appreciate how difficult this might be for the appellant, but I would strongly encourage her to see whether she can take this step in this appeal. It could be to her advantage to do so.

I would also hope that the Secretary of State would see fit to provide a representative, since that too can assist the tribunal in determining appeals involving the sort of issues raised in this case. The Secretary of State's representative may also be able to cast further light on the basis of the award whose renewal the appellant was seeking, especially in relation to daytime supervision needs.

Accordingly, I remit the appeal for consideration by a differently constituted tribunal at an oral hearing.

Directions in relation to the fresh tribunal hearing

18. The appeal is to be listed for an oral hearing in the hope that the appellant will attend and that the Secretary of State will be represented. If the appellant does not feel able to attend, the tribunal will have to make the best of all the evidence before it without the help of explanations which the appellant can provide by responding to questions.

I do not think I need to say more than that all issues are for determination of the new tribunal, which should ensure that it considers both attention and supervision needs when considering the appellant's appeal in respect of the care component. In the absence of concessions made by the appellant or her representative, the issues before the tribunal in this case (having regard to the grounds of appeal against the decision maker's decision) are delimited by the needs the appellant expresses in her renewal claim pack. Those are very wide-ranging.

19. No doubt the Tribunal Judge will make further case management directions in considering the re-listing of this appeal before the new tribunal.

A cautionary statement for the appellant

20. The appellant must understand that the decision of the tribunal of 7 October 2008 has been set aside because I have found inadequacies in their statement of reasons which constitute an error of law. My conclusions do not address the merits of the appellant's case at all. My decision should not be taken as indicating that the appellant will succeed at the new tribunal. All relevant issues must now be decided by the new tribunal in accordance with the directions and guidance I have felt able to provide in this decision.
21. I would also alert the appellant to the possibility that the new tribunal will wish to consider entitlement to the mobility component. In setting aside the decision of the tribunal of 7 October 2008, I do not think it would be right for me to indicate that the award of the mobility component is not conceivably in issue (although so far it appears to have been accepted that this was rightly awarded).

Signed on the original Robin C A White

on 19 August 2009 Deputy Judge of the Upper Tribunal