BK v Secretary of State for Work and Pensions [2009] UKUT 258 (AAC)

UKUT-AAC
BK v Secretary of State for Work and Pensions
[2009] UKUT 258 (AAC) · 2009-12-02

Decision

The appeal is dismissed.The decision of the First-tier Tribunal held under reference 921/08/00044 on 9/4/08 did not involve the making of an error on a point of law.

REASONS FOR DECISION

1 These Reasons are issued following an oral hearing before me on 12 August 2009 at Harp House. The Secretary of State was represented by Ms Melissa Chan. The appellant and her representative, Dr Amir Majid, of the Association of Blind Asians, were present. Dr Majid, who is himself blind, is a barrister, part-time immigration judge and a former tribunal member for Disability Living Allowance (‘DLA’) appeals. He confirmed that the hearing room facilities were suitable for his needs. Dr Majid’s reader, Mr Sefi, assisted Dr Majid with documents and also served as interpreter to the appellant when necessary. The appellant was content for Dr Majid and Mr Sefi to summarise legal points for her. Mr Sefi knows the appellant well, but understood his duty to be impartial. I had no reason to doubt this and Ms Chan was content with this arrangement.2 The claimant, who is the appellant, brought her appeal with my permission. Her initial appeal was against the Secretary of State’s decision on 10/07/07 to refuse to supersede her existing, indefinite award of DLA comprising the lower rate of the mobility component and the middle rate of the care component following her application for supersession on 25/5/07. She asked for a supersession because she felt that her mobility had deteriorated and believed that she should be entitled to the higher rate of the mobility component because she was virtually unable to walk.3 Her appeal was heard before an Enfield tribunal on 9/04/08. The Secretary of State was not represented at the hearing, but the appellant and Dr Majid attended. They indicated that they did not wish the tribunal to look at the middle rate of care. The tribunal, however, warned (though a better word would probably be ‘advised’ or ‘informed’) that it had the power to look at both components of the award, discussed the alternatives with them in the hearing room, and allowed them nearly half an hour outside the hearing room to decide whether to continue. Dr Majid confirmed that the appellant did wish to continue. The tribunal disallowed the appeal and substituted its own decision that the lower rate of the mobility component remained correct, but that the appellant was only entitled to the lowest rate of the care component on the basis of needing attention in connection with her bodily functions for a significant portion of the day. The duration of the award was indefinite. The date of supersession was correctly identified in the Statement of Reasons.

The background facts

4 The appellant was blinded in 1989 and awarded Disability Living Allowance (‘DLA’) at the lower rate of the mobility component indefinitely and at the middle rate of the care component from 1992 for a two year period. At that stage, she required attention in connection with her bodily functions frequently throughout the day. On review in 1994, the middle rate of the care component was made indefinite because of needs associated with the appellant’s blindness and the lower rate of the mobility component confirmed. It appears from the appellant’s appeal letter (p1) that she appealed against the rate at which the mobility component was awarded, but a tribunal confirmed the Secretary of State’s decision. In 2007 the appellant again requested that the award of the mobility component be raised to the higher rate. She attributed the deterioration in her mobility to further physical problems with her back, hip, upper legs, menopause, and stress. The evidence in the claim pack was, in brief, that the appellant used a white stick but would sometimes stumble into obstacles. She was affected by depression and anxiety when moving around and sometimes had panic attacks. Because of her blindness, she was unaware of dangers and could fall over objects blocking her way. She would sometimes feel dizzy and then panic and need to sit down because of her nerves. She said she could only walk 60 yards before the onset of severe discomfort. In her appeal letter, she recites her terrible fear of going out alone and adds that her severe back pain, hip problems and upper leg problems rendered her unable to walk even 20 yards. A GP Factual Report supplied to the Department confirmed that the appellant was totally blind, and suffered from depression/anxiety and backache, both of which were moderate/intermittent and variable. The depression was treated with fluoxetine at a standard dose and her backache by paracetamol, as needed. The GP thought the appellant’s ability to self-care was ‘okay’, that her insight and awareness of danger was limited by blindness and her ability to get around only limited by visual loss. He did not, in essence, support the appellant’s claims that her ability to walk was limited by back and hip pain and did not make any reference to balance difficulties.5 The tribunal took extensive evidence, including the appellant’s confirmation that her mobility problem was caused by her lack of vision only, and not by her spinal problems. The tribunal found that the evidence did not support a conclusion that the appellant’s mobility was impaired other than by her blindness, and that there was no problem with gait or balance. It rejected her evidence on falls on the basis of the GP’s evidence. It is worth stressing here the lack of evidence from any source at this stage that the appellant’s balance was impaired, since the appellant tried to re-open this factual issue before the Upper Tribunal. In relation to the care component, the tribunal rejected the appellant’s claim that she was unable to prepare a main meal, though its reasons were puzzling. It felt that, even though the appellant could not turn on her gas cooker herself, she was able to prepare a main meal because her son turned it on for her. In R(DLA)2/95 it was held that the main meal test included all activities auxiliary to the cooking. This would clearly extend to turning on the cooker. If she could not do that safely, it would almost inevitably follow that she could not reasonably be expected to prepare a main meal for herself. I do not, however, set the decision aside under section 12(2)(a) on the basis of this error because the tribunal awarded the appellant the lowest rate of the care component on the alternative statutory basis under section 72(1)(a)(i) that she required attention in connection with her bodily functions for a significant portion of the day. Its error was not, therefore, material.

The grounds of appeal

6 In giving permission to appeal, my view was that the tribunal had arguably erred in law in failing to state its reasons for deciding to exercise its discretion to consider reducing the appellant’s award, in light of paragraph 94 of R(IB)2/04 . Because of the extent of the appellant’s allegations about the tribunal’s failures, however, I directed the Secretary of State to provide a full response to the appellant’s many grounds of appeal. In the event, the Secretary of State did not support the appeal on any ground.7 At the hearing, the issues were narrowed down to the following:(i) whether the hearing was unfair or in breach of natural justice because (a) the appellant was unprepared for the care component to be examined, or (b) because the tribunal relinquished its impartiality by acting of its own motion to reduce the existing award of the middle rate of the care component;(ii) the correct scope of a tribunal’s power to substitute a decision adverse to the appellant. Dr Majid argued it should not have done so short of a finding of fraud, deviousness, or alternatively only on clear evidence of an improvement in the appellant’s underlying condition of blindness.(iii) the extent to which an appellant had a right to be believed. Dr Majid submitted that the tribunal had no right to reject her evidence unless the appellant was being devious. It followed that the tribunal had been wrong to prefer the GP’s report, since the appellant disagreed with it. He submitted in the alternative that the tribunal failed to consider the appellant’s oral evidence;

(iv) whether the tribunal’s findings were perverse; and

(v) whether insensitivity by the tribunal in its inquisitorial function amounted to a further breach of natural justice or an unfair hearing.

Natural Justice/Fair Hearing

8 I do not consider that a breach of natural justice or an infringement of the appellant’s right to a fair hearing under Article 6 of the European Convention on Human Rights occurred under either of the submissions put forward. Since the passing of the Human Rights Act 1998, I consider it more appropriate to deal with issues of unfairness at the hearing as issues of breach of the right to a fair hearing under Article 6, rather than under the rules of natural justice, though there would not seem to be any practical difference between them. The basic requirements of a fair trial as relevant to this appeal are (i) for the tribunal to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision ( Kraska v Switzerland, judgment of 19 April 1993, Series A, No. 254-B; (1994) 18 EHRR 188 para. [30]); (ii)The parties must be afforded a broadly equal opportunity to present their case in circumstances which do not put them at a substantial disadvantage as regards the other party ( Dombo Beheer BV v The Netherlands judgment of 27 October 1993, Series A, No. 274-A (1994) 18 EHRR 213 , para [33]); and (iii) the tribunal must be independent and impartial.Unfairness arising through consideration of the care component:9 At the outset of the hearing, the tribunal informed the appellant and Dr Majid fully and correctly of its powers in relation to an award and went through the options available with them. They were given ample opportunity outside the hearing room to decide whether they wished to proceed. Dr Majid could easily have asked for an adjournment if he felt unprepared. As it was, they opted to proceed. At the end of the day, the appellant chose to take proceed with the appeal on the advice of a legally qualified representative. It was her right to do so. The fact that the outcome of the hearing was not to her liking cannot be ascribed to any error of law by the tribunal, which more than fulfilled its duty to give the appellant a fair chance to consider her position.Were there other elements of unfairness which denied the appellant a fair hearing?10 The answer is ‘no’. The appellant participated fully through an independent interpreter and Dr Majid was permitted to make submissions at an appropriate time, taking less time than he anticipated would be necessary. The timing of his submissions was a matter for the tribunal, which controls its own procedure. The tribunal was thorough in its exploration of the appellant’s difficulties with both care and mobility, as is plain from the Record of Proceedings.11 For completeness’ sake, I would add that a previous submission that the tribunal had made up its mind in advance is entirely unfounded. I suspect that this submission arose from the tribunal’s decision, no doubt taken while previewing the case, to look at the unappealed component of the award. Previewing is part of a tribunal’s ordinary case management duties to enable it to deal with an appeal fairly and justly. By identifying in advance the relevant legal and factual issues which need to be explored, the tribunal is able to direct the parties to the relevant issues and thereby ensure their effective participation at the hearing. In doing so, the tribunal has neither made up its mind, nor closed down other relevant lines of argument or enquiry which the parties may wish to raise.Did the tribunal relinquish its impartiality by looking at the unappealed component?12 The answer is once again ‘no’. The submission reflects a misunderstanding of the nature of an appeal to a First-tier Tribunal, which is by way of a complete rehearing on matters of fact and law ( R(IB)2/04 , paragraphs [19 – 26]) and inquisitorial ( Kerr v Department for Social Development (Northern Ireland) [2004] UKHL 23 , per Lord Hope of Craighead at paragraph [14], Baroness Hale of Richmond at paragraphs [61], and R(IB)2/04 (Tribunal of Commissioners)). In paragraph 32 of R(IB)2/04 , it is stated that:[32] ‘Appeal tribunals are part of the adjudication system which is designed to ensure that claimants receive neither more nor less than the amount of social security benefit to which they are properly entitled (as opposed to the benefits to which the parties may be contending that they are entitled). There is a legitimate public interest in ensuring such a result. The jurisdiction has thus been described as inquisitorial or investigatory (see, in particular, R(IS) 5/93 and the authorities cited in paragraph 14 of that Commissioner’s decision). Such a jurisdiction generally extended to include a duty on the tribunal to consider and determine questions which are necessary to ascertain the claimant’s proper entitlement, whether or not they have been raised by the parties to an appeal ( R(SB) 2/83 )…13 It follows that a tribunal does no more than act in accordance with its inquisitorial duty if, having previewed the appeal or, indeed, having heard evidence, it decides that an unappealed element of an award requires examination. This is a legitimate part of the tribunal’s independent functions, and the tribunal’s inquisitorial role, status as a superior fact finding body and specialist composition make it particularly well-placed to do so. [1] The tribunal will, of course, need to offer the appellant a fair chance to consider his position in the light of this new point, as happened in this appeal.14 If an allegation of partiality can survive the reasoning above, it should be assessed by reference to the legal framework which governs the tribunal’s duties in relation to DLA awards. The fair minded and informed observer who served in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 to adjudicate on bias seems equally suited to do service here. Such an observer would know the duties of the First-tier Tribunal and conclude that the tribunal was not partial, but simply performing its proper task

Substituting a decision adverse to the claimant

15 There can be no doubt following the Tribunal of Commissioners’ decision in R(IB)2/04 (in particular [89 – 97] and [194]) that a tribunal in a DLA appeal is entitled to make a decision less favourable to the claimant than did the Secretary of State. However, at paragraphs [31] and [32] the Tribunal of Commissioners also decide that [2] a First-tier Tribunal has a discretion over whether to examine an unappealed element of an award:[32] …An appeal tribunal is under a duty to consider whether or not to exercise the discretion where the circumstances could warrant it and would err in law by failing to do so or by failing to give adequate reasons for its conclusion. However, it will not err in law if, following a proper judicial exercise of its discretion, it decides not to consider issues not raised by the parties to the appeal.It is apparent from paragraph [32] that a tribunal may err just as much by failing to examine an unappealed element of an award if it is problematic, as by deciding that it should examine it.16 Unsurprisingly, conflicting approaches to the exercise by a tribunal of this discretion have emerged in the case law. In C15/08-09(DLA) (Northern Ireland) , Commissioner Mullan considered, after an extensive review of the case law, that an appeal tribunal should always investigate an element of an existing award if it has any doubt concerning its validity (paragraph [62]). In CDLA/884/2008, on the other hand, Judge Rowland, contemplates that a tribunal should steer clear of considering an element of an award which has not been put in issue by the parties:
‘except in the most obvious cases (e.g., where the evidence is overwhelming or the facts are not in dispute and no element of judgement is involved or where the law has been misapplied by the Secretary of State) or after an adjournment. In such obvious cases, a failure expressly to state why a tribunal has considered a point not in issue between the parties will not necessarily render the tribunal’s decision erroneous in point of law; in less obvious cases, the absence of a reason for considering the point may suggest that the discretion to do so has not been exercised properly’ - paragraph [10] of CDLA/884/2008 (italics added).
17 In my view, where a First-tier Tribunal has a real doubt about an existing unappealed element of an award, it should normally investigate it. It has a duty, qualified by the exercise of its discretion, to do so. The Upper Tribunal should not seek to limit the First-tier Tribunal’s discretion. Indeed, in R(IB)2/04 the Tribunal of Commissioners specifically declined to give advice about how that discretion was to be exercised (paragraph [93]). The comments in CDLA/884/2008 , which are not binding in law, should not be taken to detract from the principle confirmed in R(IB)2/04 by the Tribunal of Commissioners. In practical terms, of course, it is unlikely that a tribunal would embark upon consideration of an unappealed element of an award unless the defects in it were patent.18 It follows from the above paragraphs that Dr Majid’s second submission cannot be accepted. The exercise of the tribunal’s discretion is not confined to cases of perceived fraud or deviousness, nor can it be constrained by the Secretary of State’s decision in respect of a particular component.Did the tribunal err in law in not giving explicit reasons for considering the unappealed element of the award?19 This is really no more than asking whether the tribunal had given adequate reasons for its decision. In relation to the exercise of the discretion in question, R(IB)2/04 requires only that the tribunal exercises its discretion consciously and gives some explanation of why it considered superseding a decision adversely – paragraph [93]. I agree with Judge Rowland that the extent to which the tribunal is obliged to give reasons for considering an unappealed element of an award will depend on the circumstances. Where a case is obvious, the tribunal’s failure expressly to record its reasons for exercising its discretion is unlikely to make the decision wrong in law. It can also be said that the more obvious the case, the more likely it is that the reasons will be apparent from the Statement of Reasons, even if only by implication. The less obvious the case, the greater will be the need for explicit reasons to be given. In R v Immigration Appeal Tribunal ex parte Khan [1983] QB 790, Lane CJ put it this way:
‘A party appearing before a tribunal is entitled to know, either expressly or inferentially, what it is to which the tribunal is addressing its mind. In some cases, it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not…[Secondly] the appellant is entitled to know the basis of fact on which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not.’
20 When deciding whether reasons for a decision are adequate, one must look at the Statement of Reasons as a whole and the evidence before the tribunal. Looking at how this tribunal addressed its powers at the outset of the hearing, the evidence before it, and reading the Statement of Reasons as a whole, it should be more than clear to the reader why and how the tribunal exercised its discretion. .

The extent to which an appellant had a right to be believed

21 There is no rule of law or evidence that a tribunal must accept an appellant’s evidence unless it is devious. Indeed, there is no rule that a tribunal must accept a witness’s evidence at all, though it must have a reason for disbelieving it: R v Social Security Commissioner ex p Bibi, (unreported 23/5/00). The extent to which a witness’s evidence is accepted is a matter for the tribunal’s judgment, involving a variety of factors such as his reliability, the internal consistency of his account, the consistency of that account with other evidence and its inherent plausibility: CIS/4022/200 7. A tribunal will not err in law if it can be seen to have weighed the evidence against the relevant criteria and given an adequate explanation of how it came to its conclusions on it.22 This tribunal gave adequate reasons to explain why it accepted or rejected various items of evidence and why it ultimately concluded that the appellant’s evidence was not reliable. It pointed, for example, to the appellant’s inconsistency and the lack of plausible objective evidence which would account for her claimed mobility problems. In relation to care needs, the tribunal clearly exercised its own specialist judgment, treating circumspectly the GP’s report, which it thought might underestimate the appellant’s difficulties, while on the other hand paying careful regard to the activities the appellant described herself as accomplishing regularly as indicating fewer needs than those she claimed.Were the tribunal’s findings perverse?23 The tests for perversity are set out in R (Iran) v Secretary of State for the Home Office [2005] EWCA 982, paragraph [11]. For a decision to be perverse, it must be irrational or unreasonable in the Wednesbury sense, while for a finding of fact to be perverse, it must wholly unsupported by the evidence.24 Dr Majid’s submissions were, in essence, that the tribunal was perverse in ignoring, or not believing, the appellant’s oral evidence. I have dealt with the latter above. I do not consider that the appellant has come near to establishing that the tribunal acted perversely.25 The evidence ostensibly ignored was the appellant’s statement that her GP did not know her well and she could not communicate with him. The Record of Proceedings records the appellant’s evidence that she spoke to her GP about her back pain, ‘but that the GP did not seem interested’ – though she added that the GP sent her for x-rays (p104). The tribunal specifically refers to the x-ray investigation and tablets prescribed for the back pain, and draws the conclusion from this treatment that the condition was unlikely to have been significant. Although the tribunal did not refer to the appellant’s evidence that her GP was not interested, its recital of her evidence that the GP sent her for investigations suggests that they could not have accepted her view that the GP was not interested. Had this been so, she would not have been referred.26 Had I considered that there had been a material error in this regard, I would have made further findings of fact and re-made the tribunal’s decision to the same effect in any event by virtue of section 12(2)(b)(ii) and (4)(b) of the Tribunals, Courts and Enforcement Act 2007. The claim pack contains evidence that the appellant has been sent to various specialists at one stage or another. Moreover, the appellant told me at the hearing that she normally attended the GP with her care worker, who assisted her in communicating with her GP. In short, her evidence does not establish that her GP is uninterested or that she has not had appropriate care from her GP.27 I consider that the tribunal justified its findings by reference to the evidence, including the appellant’s oral evidence, and applied its expertise to analysing it. The decision followed from the findings. The tribunal was entitled not to accept the appellant’s own assessment of the extent of the needs arising from her disabilities. I cannot see how its findings or decision can be impugned as irrational or unreasonable, or wholly unsupported by the evidence in these circumstances.Did insensitive questioning result in a breach of natural justice or an unfair hearing?28 Dr Majid’s submission was that questions relating to whether the appellant needed her adult son’s assistance with aspects of dressing were culturally insensitive, inappropriate and unfair. It can be seen from the Record of Proceedings that the questions on this matter formed only a very small part of the evidence, and since the appellant asserted some difficulties with dressing, the questions were certainly not irrelevant. Similar questions might have been asked (although they were not) about how the appellant managed to shower, another activity with which she said she felt unsafe without supervision.29 DLA appeals frequently involve medical conditions and personal care needs of an intimate or embarrassing nature. If such conditions or needs are seen to arise, the tribunal must explore them in order to establish entitlement to benefit, whether or not the questions are embarrassing, insensitive or upsetting. A tribunal would be keenly aware that adults from any background could well find it embarrassing to tell strangers these things, but it is the tribunal’s duty to ask. While tribunals try to minimise distress by being tactful, they cannot always be successful. Questions cannot always be perfectly phrased in the pressured environment of a hearing and attendees may have a variety of preconceptions – or misconceptions - about a hearing which, when combined with the stress of the occasion, lead them to think that a tribunal is biased or unfair in asking questions which are, in fact, legitimate.30 Given the nature of the issues that the tribunal may quite properly need to investigate, it is very difficult to envisage circumstances in which a tribunal pursuing a relevant line of questioning, however upsetting, will have failed to provide a fair hearing. To succeed in such a submission, it would have to be shown that the hearing unfair by reference to the general principles of fairness in the context of Art. 6, which have already been set out in paragraph 8. It should be emphasised that the test of unfairness is not judged subjectively from the appellant’s point of view.31 It cannot realistically be argued that the appellant was denied the opportunity to give evidence freely, or that her representative was unable to make his submissions. Nor can it realistically be said that the appellant was at a substantial disadvantage in putting her case. Nor am I persuaded that the tribunal, which acted properly in the fulfilment of its judicial functions, was biased or partial. Viewed from the perspective of a fair minded and informed observer, the tribunal could only have been seen as doing it judicial duty.32 The appeal is accordingly dismissed.

[Signed on original] S M Lane

Judge of the Upper Tribunal

Dated : 2/12/2009

[1] R(IB)2/04 , paragraph [14]

[2] By way of interpretation of section 12(8) of the Social Security Act 1998.

Cited in 3 later judgments