Nicholas, R (on the application of) v Secretary of State for Work and Pensions [2012] EWHC 2724 (Admin)

Case No CO/12305/2010[2012] EWHC 2724 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 26 July 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE HADDON-CAVE
Between
THE QUEEN ON THE APPLICATION OF NICHOLASClaimantv
Between
UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)DefendantTHE SECRETARY OF STATE FOR WORK AND PENSIONSInterested Party
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Desmond Rutledge (instructed by Plumstead Law Centre) appeared for ClaimantMiss Kate Olley (instructed by DWP Legal) appeared for Defendant for The interested Party did not appear and was not represented
J U D G M E N T
[1]MR HADDON-CAVE: This case raises questions as to firstly, the extent of the dictates of fairness when First-tier Administrative Appeals Chamber Tribunals are dealing with litigants in person and second, whether any unfairness fulfills the criteria in Cart v Upper Tribunal [2011] UKSC 28.[2]This is an application for judicial review lodged on 26 November 2010. Permission was granted by Foskett J on 13 March 2012. The claimant, Janet Nicholas, challenges the decision of Upper-tier Judge Powell, who refused permission to appeal from the First-tier Tribunal decision of 28 May 2009 dismissing her appeal against her Personal Capability Assessment (PCA) on 7 August 2008.[3]The case was stood out pending the decision of the Supreme Court in Cart. After Cart was decided the claimant submitted a letter, dated 23 June 2011, maintaining that her case met the second limb of the second appeal criteria "some other compelling reason" for granting permission. Accordingly she sought permission to amend her claim form as necessary.[4]The Defendant Tribunal, the Upper Tribunal (Administrative Appeals Chamber), filed an acknowledgment of service on 22 December 2010. The interested party, the Secretary of State for Work and Pensions, filed an acknowledgment of service on 15 July 2011 with summary grounds, which are relied upon now as detailed grounds.[5]The claimant filed a letter by way of reply to the latter acknowledgment of service on 19 July 2011. The matter then appears to have been stood out pending further guidance on how Cart was to be interpreted, and the matter seems unfortunately to have languished somewhat since then.[6]The application came before Foskett J, as I have mentioned, on 13 March 2012, when he granted permission to apply for judicial review of the decision of the Upper Tribunal Judge, dated 10 September 2010. In granting appeal he made the follows observations:
"This application has taken a very long time to get before a judge which is regrettable. Applying CART is not always easy and my view has fluctuated whilst reading the papers. However, I am troubled that an unrepresented party who effectively presented with the decision whether to seek an adjournment of the First-Tier Tribunal's hearing when she either did not or may not have appreciated the importance of doing so. It is at least arguable that the First-Tier Tribunal's decision could not have been made without the earlier material available to it that could have been made available had there been an adjournment. In those circumstances, it seems to me that it is arguable that there was a "collapse of fair procedure" such that there is a compelling reason to review the decision to refuse permission to appeal. It is on that basis that I granted permission to apply for judicial review."
[7]Before me today Mr Desmond Rutledge appears for the claimant, Mrs Nicholas. In his helpful written submissions he submits that the application has its origins in a decision to remove the claimant's entitlement to Incapacity Benefit after she failed to score sufficient points under the PCA. He explains that the challenge relates to the fairness of the procedure adopted by the First-tier Tribunal, who heard her appeal, and early on in that hearing failed to adjourn in order to obtain the previous PCAs, which the Tribunal was aware probably existed. He submits that this amounts to a "serious procedural irregularity" because the Tribunal needed to make a proper comparison between the PCA under appeal and the previous PCAs, without which it was not in a proper position to undertake a proper analysis. He further submits that in merely asking the claimant whether she wanted an adjournment or to proceed, the Tribunal acted unfairly.[8]He submits it was unfair, in particular, because the Tribunal had before them an unrepresented claimant who did not, or might not, have known the potential significance of earlier PCAs and who would have taken an "uninformed view" as to their value and the merits of any adjournment to obtain them.[9]He submits that the Tribunal acted unfairly because they effectively deprived Mrs Nicholas of a fair and proper consideration of the merits of her case in breach of the overriding principle, which is set out in Part 1 of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 (SI 2008/2685) at section 2(1):
"The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly."
[10]He also has made today a second fundamental submission, which is that the Tribunal failed first to consider itself whether to adjourn the matter in order to obtain the previous PCAs. This was something which he submits the Tribunal ought to have considered. If they had done so they would have concluded that they should adjourn because the previous PCAs contain potentially valuable material that would inform them as to the true merits of her case, and enable them to make a proper comparison with the PCA which they had before them, and which did not award her sufficient points to entitle her to further Incapacity Benefit.[11]He submits that her judicial rechallenge meets the high threshold in Cart under "compelling reasons", because it was "a collapse of fair procedure", since without the earlier PCAs the claimant could not be said to have had a fair hearing of her appeal against the decision to remove her entitlement to Incapacity Benefit.[12]For the Secretary of State for Work and Pensions, Miss Kate Olley, who appears today, makes two simple submissions. The first is that the Tribunal did not, at any stage, act unfairly. It raised the question of an adjournment with Mrs Nicholas, fairly and squarely, and she decided not to take that option but proceed with the hearing. Miss Olley submits, on the material that the Tribunal had at the time, that was a fair and reasonable course for the First-tier Tribunal to take. Second, she submits that even if the First-tier Tribunal could and should have done more in the circumstances, this case is a far cry from the sort of conspicuous wholesale unfairness that would reach the cut of the threshold. The Law[13]Before turning to the facts it is just as well to have in mind the test in Cart (supra). The Supreme Court, after considering various options, alighted upon the criteria for the grant of permission by the Upper Tribunal to the Court of Appeal, which is set out in section 13(6) of the TCEA: the Tribunal, Courts and Enforcement Act 2007. Section 13(6) of the TCEA provides thatthe permission should not be granted unless:
"(a)that the proposed appeal would raise some important point of principle or practice, or (b) that there is some other compelling reason for the relevant appellate court to hear the appeal."
When elucidating the second limb of the test Lord Dyson JSC said this:
"the second limb of the test ('some other compelling reason') would enable the court to examine an arguable error of law in a decision of the FTT which may not raise an important point of principle or practice, but which cries out for consideration by the court if the UT refuses to do so. Care should be exercised in giving examples of what might be 'some other compelling reason', because it will depend on the particular circumstances of the case. But they might include (i) a case where it is strongly arguable that the individual has suffered what Laws LJ referred to at para 99 as 'a wholly exceptional collapse of fair procedure' or (ii) a case where it is strongly arguable that there has been an error of law which has caused truly drastic consequences."
Lord Dyson JSC went on to emphasise how the "exceptional nature of the test is well understood" by reference to entries in the White Book and elsewhere.[14]The decision in Cart (supra) was considered by the Court of Appeal in PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73. In PR Sri Lanka Carnwath LJ said this:
"35. Judicial guidance in the leading case of Uphill emphasised the narrowness of the exception. The prospects of success should normally be “very high” or(as it was put in Cart para 131) the case should be one which “cries out” for consideration by the court. The exception might apply where the first decision was “perverse or otherwise plainly wrong”, for example because inconsistent with authority of a higher court. Alternatively a procedural failure in the Upper Tribunal might make it “plainly unjust” to refuse a party a further appeal, since that might, in effect, “deny him a right of appeal altogether”."
Carnwath LJ continued: "36. It is true that Lady Hale and Lord Dyson in Cart acknowledged the possible relevance of the extreme consequences for the individual. However, as we read the judgments as a whole, such matters were not seen as constituting a free-standing test. In other words “compelling” means legally compelling, rather than compelling, perhaps, from a political or emotional point of view, although such considerations may exceptionally add weight to the legal arguments.[15]In JD (Congo) v the Secretary of State for the Home Department (Public Law Project Intervening) [2012] EWCA (Civ) 327 Sullivan LJ, giving the judgment of the court, said this:
"26. In our view paragraph 36 of PR is consistent with Cart, indeed it would be surprising if it was not. As we read the judgment in PR, the Court was emphasising the fact that, in the absence of a strongly arguable error of law on the part of the UT, extreme consequences for the individual could not, of themselves, amount to a free-standing "compelling reason."
Sullivan LJ continued:
"27. We have deliberately used the phrase "sufficiently serious legal basis for challenging the UT's decision" because the threshold for a second appeal must be higher than that for an ordinary appeal – real prospect of success. How much higher, how strongly arguable the legal grounds for the challenge must be, will depend upon the particular circumstances of the individual case and, for the reasons set out above, those will include the extremity of the consequences of the UT's allegedly erroneous decision for the individual seeking permission to appeal from that decision."
It follows from the above cases that the following three points are clear: (1) that the test in Cart is a very high one; (2) that there must under this second limb be a "legally compelling other reason for granting appeal" and (3) mere unfairness is not sufficient: there must be "a wholly exceptional collapse of fair procedure".[16]Inquisitional Tribunals have specific duties in relation to unrepresented litigants. In AT v Secretary of State for Work and Pensions (ESA) [2010] UKUT 430 AAC in which HHJ Lane observed as follows: "10. What is fair may vary with the jurisdiction of the tribunal concerned. In the Social Entitlement Chamber, where claimants tend to be unrepresented and often disadvantaged in a variety of ways, it may well be necessary for a tribunal to override an appellant’s choice in order to do justice. This may occur, for example, where the tribunal notices (or should have noticed) a material point which could affect the outcome of the case which a layman would not appreciate, or where the tribunal believes the appellant may have evidence whose significance he does not understand. In other types of tribunal where appellants are represented, a less interventionist approach is likely to prevail.” With those considerations in mind I now turn to the facts. The Facts[17]In 2003 the claimant unfortunately suffered an accident in the course of her work as a teacher. In September of that year she was working in class in the playground with various bikes, balls and children. As she bent down one child pushed her on the back of her neck and knocked her over. She managed to get back on the bench and sat, but felt physically sick and was in a great deal of pain in her lower back. The accident caused problems with her neck and shoulder particularly, and she became incapable of work from 9 April 2004.[18]The cause of her incapacity was certified by her doctor as pain from her arm and neck problems, as well as depression. She was paid a period of social security benefit, and then was paid contributions-based Incapacity Benefit from 30 June 2005. She was required to undertake a number of PCAs between 2005 and 2007, which confirmed her entitlement to Incapacity Benefit.[19]On 7 August 2008, however, she attended a further PCA, but failed to pass the assessment to remain on Incapacity Benefit, having been examined by the registered medical adviser on that occasion, Dr Alaparti, who awarded her no points for physical impairment and only three points for mental impairment. Accordingly, she did not reach the relevant threshold of 15 points required to allow the continuance of the payment of Incapacity Benefit. That decision was notified to her on 29 August 2008.[20]On 26 November 2008, the claimant appealed her decision out of time to the First-tier Tribunal (the Secretary of State did not oppose the admission of the late appeal). The hearing of her appeal before the First-tier Tribunal took place on 28 May 2009. As I said, the claimant was unrepresented on that occasion, as is common. The Secretary of State was also not represented at that hearing.[21]It is worth quoting from the Tribunal's notes of the record of proceedings of that hearing. The constitution of the Tribunal was Mrs E Harty, who was the Tribunal Judge, and Dr V Raval. In the preamble the Tribunal recorded that they read the papers from pages 1 to 63, including the letter that the claimant had brought with her. The note referred to the medical examination on 7 August 2008 and the PCA that was brought into existence as a result of that examination. It noted that the claimant had had SSP and IB since around 2004 and added the following: "Previous PCAs?".[22]In the record of proceedings following that introduction from the Chair, the notes record the following exchange:
"A I have had to have a medical every year. I don't remember what I got points for - I didn't worry before because no problem. I also had IIDB exam - awarded again from Feb 09. 14 % - disability for physical & also effect on my mental harmony. CH We don't have those docs - could adj[ourn] if nec'y - informal hrg - anything now? A No"
It is that exchange which both Mr Rutledge and Miss Olley rely upon in this application. What appears to have happened is that the Tribunal told the claimants that they did not have the documents relating to her previous medicals and that she had had and could adjourn if necessary, but the claimant declined that invitation.[23]The hearing then went ahead. In its decision on 28 May 2009 the First-tier Tribunal disallowed the appeal and confirmed the decision to withdraw the claimant's Incapacity Benefit on 29 August 2008. It concluded that Mrs Nicholas did not satisfy the Personal Capability Assessment. The Tribunal awarded six points on the physical descriptors because of her problems with lifting with her right hand, in addition to the three points already awarded for the mental health descriptors. The Tribunal therefore had come to a different view to that of Dr Alaparti regarding the claimant's physical impairment (see further below).[24]In its Statement of Reasons, dated 12 October 2009, the Tribunal said this:
"1. Mrs Nicholas appealed against the decision of 29.08.2008 to stop her Incapacity Benefit because she had not satisfied the personal capability assessment (PCA). She scored no points on the mental health descriptors and 3 points on the physical descriptors in the PCA after an examination on 07.08.2008. She appealed saying that the examination report understated both her physical and her mental health difficulties and did not take account of the physiotherapy she was having. ... She attended the hearing and gave evidence. 2. Mrs Nicholas had been certified by her doctor as being incapable of work since 09.04.2004 because of pain and depression. She had been receiving Incapacity Benefit since 30.06.2005. She had previously been assessed as satisfying the PCA. Mrs Nicholas said she had also been awarded industrial injuries disablement benefit, which had been renewed again from February 2009, apparently on the basis that she was 14 % physically disabled and there was an effect on her 'mental harmony'. The documents relating to those assessments were not available to the Tribunal. Mrs Nicholas was given the opportunity to ask for an adjournment so that an attempt could be made to obtain those papers but she did not do so."
[25]The Tribunal then went on to consider the various aspects of Mrs Nicholas' medical condition and made various findings of fact regarding her dexterity, reaching, lifting and carrying capacities. Under the heading "Mental Health" the Tribunal said this:
"8. Mrs Nicholas said in her questionnaire that she had no mental health problem, no such problem was mentioned in the evidence from her GPs and she was having no treatment for a mental health problem. She managed normal activities of daily living including walking her son to school, going shopping alone and cooking for them both. The Tribunal agreed with Dr Alaparti's opinion that Mrs Nicholas had mild depression. We accepted his assessment of the effect of that condition and confirmed the award of 3 points on the mental health descriptors. We considered that the evidence did not show that any other descriptors were appropriate."
[26]The Tribunal went on, however, to correct Dr Alaparti's decision and award Mrs Nicholas, as I have said, six points on the physical descriptors. However, the total of these points was not enough to entitle her to continuance of Incapacity Benefit. Decision[27]It is common ground that it is not in every case that the a First-tier Tribunal has to obtain and consider earlier PCAs. This is apparent from a helpful decision of Mr Commissioner Bano, Commissioner's Case No CIB/3179/2000. In this decision the Social Security Commissioner had to consider whether all previous work test assessors (as they were called then) had to be taken into account when making the supersession decision in that case, which had some parallels with the present case because in that case the claimant was also unrepresented. The conclusion in that case was that a Tribunal did not have to have available to it, or consider, all previous work assessments in every case. It all depended on the facts and, in particular, whether or not issues of comparison between those assessments, and more recent personal capability assessments, were raised or relevant. In the instant case Commissioner Bano decided that the previous work assessments were relevant and should have been considered.[28]Second, it is not correct, in my judgment, to suggest that the First-tier Tribunal gave no consideration at all to the question of an adjournment for the obtaining of PCAs. It is clear from the record of the proceedings (see above), that the Tribunal did consider the question of an adjournment to the extent that it determined or concluded that the relevant course was to ask the claimant as to whether or not she wished to have an adjournment.[29]The absence of PCAs was something which the Tribunal also considered: it spotted and flagged it up right at the beginning of the hearing, and raised the question of whether an adjournment was necessary to obtain, as the claimant put it, the medical reports. The question which arises for present purposes is whether or not that was a fair and reasonable thing for the Tribunal to do, or should the Tribunal have done more, for instance, as Mr Rutledge would have it, advised the claimant as to the potential importance of such previous medical reports and/or overridden her reluctance to have an adjournment.[30]Having considered the matter in some detail, in my judgment the decision of the Tribunal to give the claimant the option of adjourning was fair and reasonable, in all the circumstances, for the following reasons. First, the Tribunal had read and considered a significant amount of evidence about the claimant (pages 1 to 53 of the bundle), which included a considerable wealth of material, including Dr Alaparti's assessment itself and other materials. Secondly, the material included, in particular, the detailed questionnaire, which the claimant had filled out on 4 June 2008. In that questionnaire, in the box summarising illness or disability, she said:
"I suffer from neck pain, stiffness in neck, following a trauma. I also have related pain, numbness and weakness through right arm along outer edge of hand and pain in muscles in upper right back."
Under the heading "Information about anxiety, depression and other mental health problems", as the First-tier Tribunal itself noted (see above), the claimant ticked the "no" box and answered the question:
"Have you been treated for anxiety, depression or mental illness? Or do you think you have a mental health problem?"
In the box underneath that, which was headed:
"Use the space below to tell us about any problems you have with your nerves or any other mental health condition..."
She there referred to her 2003 accident and experienced her difficulties in coping since then, and she wrote this:
"I suffered a shock when I was injured at work in 2003 and have experienced difficulty coping since in a variety of ways, dealing with crowds, nervousness around children running around, jumpiness when hearing unexpected sounds behind me. Because of the continued physical problem I have been unable to put the incident behind me, as well as this I lost my post as a teacher as a result of being unable to return to work within the time limit set out by my contract. I have also struggled to cope with my child's needs over this period which caused me great distress."
[31]Three points emerge from that: firstly the claimant only emphasised her physical problems; secondly, she expressly disavowed mental health problems, but did point to difficulties in the sequelae she had suffered from since her accident in 2003; thirdly, there was no obvious variables in the condition is which might give rise to concern that the severity of either her physical or mental conditions was one which was liable to fluctuate very considerably.[32]Mr Rutledge challenges the Upper-tier Tribunal's approach and relies on several main points in relation to the evidence. Firstly, he says the Tribunal knew Mrs Nicholas had had previous PCAs in 2005 and 2008. Secondly, the Tribunal knew that there were mental health problems and it was important to judge Dr Alaparti's decision on rewarding only three points in its proper context. Thirdly, if they had obtained the earlier PCAs the Tribunal would have seen that they showed that in PCA No 1, dated 12 January 2006, the claimant was awarded 12 points under the mental health test, which passed the ten-point threshold for Incapacity Benefits under mental health (although no points for physical health). They would have also seen in relation to PCA No 2, dated 19 April 2007, the claimant was then assessed as having 12 points under the mental health assessment, although no points for physical health. The drop in assessment from that level to Dr Alaparti's assessment of three points, Mr Rutledge says, is something which would materially have affected, or might materially have affected, their judgment.[33]The problem with that analysis, in my judgment, is that, as I have just intimated, there was nothing which the Tribunal saw that might have given rise to a concern that her condition was variable or erratic and was not one which was capable of gradual improvement.[34]Whilst it is fair to say that the First-tier Tribunal was inquisitorial, there was no reason for the Tribunal to suppose that Mrs Nicholas' judgment of the matter was not something to be relied upon. The hearing took place some five years since the original hearing. There had clearly been some physical and psychological sequelae, but the questionnaire clearly indicated improvements.[35]In my judgment there was no obvious or compelling reason why the Tribunal should have thought it was necessary to see the earlier PCAs. The PCAs might have shown a linear improvement in her condition with the points going down from 20,15 to 10. It is noteworthy, as Miss Olley has pointed out, that in the medical report form, dated 19 April 2007, the claimant at that stage complained of experiencing panic attacks and having poor sleep, so to that extent there appears to have been some improvement between 2007 and 2008.[36]In these circumstances, the Tribunal are, in my judgment, not to be admonished for not having second guessed her decision, or indeed overridden it, or to have told her how important the early PCAs might have been. Only Mrs Nicholas knew how many there were and what they said, and it may well have been, as far as the Tribunal was concerned, that she preferred to argue her case on the fresh material. There was in conclusion, in my judgment, nothing unfair at all about there approach leaving the question of an adjournment to the claimant. Even if it can be said, however, that there was any unfairness by the First-tier Tribunal, or that the First-tier Tribunal should have advised or cautioned her in some way as to the previous PCAs, this case, in my judgment, does not come close to satisfying the test in Cart, namely a wholesale "collapse" of fairness. A balance has to be struck as to what an inquisitorial Tribunal should, and should not, do in order to guide an unrepresented claimant.[37]It may well be the case that for a First-tier Tribunal to override a decision of a claimant, as regards an adjournment, to seek PCAs might itself be categorised as unfair if those PCAs themselves cast a different light on the claimant's case, which the claimant did not want to be cast. Each case depends upon its own facts and, in my judgment, this case does not qualify as either unfair or within the realms of Cart.[38]In refusing permission to appeal Upper Tribunal

Judge Powell said this on 10 September 2010:

"The grounds of appeal do not identify any arguable error of law. I am satisfied that the tribunal dealt with this appeal in a careful and fair manner. It offered the applicant an adjournment so that further papers could be obtained but she refused the offer. Although she was unrepresented it would have been apparent to her that such papers might assist her appeal. The tribunal reached conclusions which it was entitled to reach on the evidence contained in the papers and after seeing and hearing from the applicant. It made adequate findings, including in relation to dexterity, and has explained its reasoning. The decision is sustainable."
I agree with those conclusions by HHJ Powell.[39]I am grateful to both counsel for their very helpful submissions and their hard work. The claim is dismissed with costs.[40]MISS OLLEY: I am grateful. I have an application for the Secretary of State's costs. I do not know if you refine the sum as the Department of Legal Services works in terms of hourly rates regarding briefings, or whether it is possible --[41]MR HADDON-CAVE: Do not worry. You cannot object to costs, Mr Rutledge; is that right?[42]MR RUTLEDGE: I can object to them but I cannot resist them, my Lord. May I then briefly ask for permission to appeal?[43]MR HADDON-CAVE: You can, I am afraid but permission is refused.[44]MR RUTLEDGE: My Lord, in relation to the order for costs, I was going to try and agree some standard wording for costs where it is publicly funded and give that to your clerk. One final point, my Lord: normally I would have 21 days to appeal to the Court of Appeal and then we would wait for the transcript to emerge. I was wondering whether it would be helpful if you could direct that the 21 days starts to run from receipt of the transcript?[45]MR HADDON-CAVE: Yes. It seems fair enough. I am grateful to you both. Thank you so much.[46]MR RUTLEDGE: It looks like we have agreed possible terms of the order, so I will hand it straight up.

Cited in 1 later judgment