SB v Secretary of State for Work and Pensions (ESA) [2012] UKUT 249 (AAC)

UKUT-AAC
SB v Secretary of State for Work and Pensions (ESA)
[2012] UKUT 249 (AAC) · 2012-06-28
[1]Both the claimant and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing. That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail. I need only deal with the reason why I am setting aside the tribunal’s decision.[2]I have set the tribunal’s decision aside, because the tribunal erred in failing to apply correctly or at all rule 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.[3]The claimant had originally requested an oral hearing. When it was listed she wrote on 14 September 2011 (as original):
“I am writing regarding my appointment on the 14.10.2011. I would no longer feel I could attend my hearing. When I filled in the form saying I could attend my anxiety and panic attacks wasent as intence as they are now. I don’t go out of the house alone very often and cant get anyone to bring me on that date. I can get a doctors note to cover my absence if needed.”
[4]Under rule 27 a tribunal is required to hold a hearing in the circumstances of this case 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.”
[5]The claimant’s letter resulted in a decision by a clerk that the hearing should be postponed. By a process which is not clear to me from the papers I have, the case was then listed on 11 October 2011 for decision on the papers. There is no suggestion from the tribunal’s statement of reasons that in doing so it was relying on any material emanating from the claimant other than her letter of 14 September.[6]The tribunal recorded:
“The hearing date had been postponed and the appeal was then listed to be dealt with by the tribunal on the papers on 11.10.2011. From the appellant’s letter it was clear that she was not seeking merely a postponement to a later date when she would be able to attend, but that she wanted the appeal to proceed in her absence. In view of this clear indication from the appellant and having considered the papers, the tribunal concluded that it was in the interests of justice to proceed to decide the appeal in the appellant’s absence, bearing in mind Rules 31 and 2 of the Tribunal Procedure Rules.”
[7]Rule 31 was not the appropriate provision. It deals with where a party fails to attend a hearing. The tribunal must be satisfied, among other things, that the parties have been notified of the hearing or that reasonable steps have been taken to do so. The listing for 11 October was not for a hearing but for a decision on the papers. As there was no hearing, rule 31 was inapplicable.[8]The tribunal should have considered rule 27, set out above. Had it done so, I consider that it would not have been open to it to conclude that the claimant had consented , or not objected, to the matter being decided without a hearing. All the tribunal had to go on was the letter of 14 September. The letter was in my view not sufficient to amount to consent or to a failure to object. The claimant’s condition meant that she would not find it easy to go to a tribunal, but the implication of mentioning that she could not get anyone to accompany her on the scheduled date was that she thought she would be able to manage a hearing if she could be accompanied. On the initial enquiry form she had merely ticked the box for an oral hearing, thus it was entirely consistent with there having been (as she wrote in her letter) a deterioration in her anxiety i.e. from being able to go to a hearing to only being able to go if accompanied. The reference to obtaining a doctor’s note if required also tends to suggest that a postponement was being asked for (for which a doctor’s note might well be needed). If the claimant was simply waiving the need for an oral hearing, it is unlikely that she would have felt the need to offer a doctor’s note, though , I accept, possible, for instance if she was (wrongly) worried she might be in trouble for changing her mind.[9]Accordingly, the tribunal erred in law by applying the wrong rule and by failing to make the further enquiries of the claimant which were necessary before the correct rule could be applied.[10]I do not need to deal with any other error on a point of law that the tribunal may have made. Any that were made will be subsumed by the rehearing.[11]I direct that before the case is listed by the First-tier Tribunal, it should ask the claimant whether she would attend an oral hearing if it can be arranged for a date when she could be accompanied and if so, should take all reasonable efforts to list the hearing for a date when a person is available to accompany her. The tribunal to which the case is remitted must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh. The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against (3 February 2011) – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.[12]The claimant’s grounds of apteral to the Upper Tribunal were largely challenges of fact and of disagreement with the tribunal’s conclusions. Though they could not be successfully argued before the Upper Tribunal, she will be able to raise her points before the First-tier Tribunal. While it is not appropriate for me to direct her attendance, I encourage her to attend if possible as it is often very helpful for a tribunal to hear directly from the person concerned.[13]The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted. (signed) C.G.Ward Judge of the Upper Tribunal 28 June 2012

Cited in 1 later judgment