TMcG v Secretary of State for Work and Pensions [2012] UKUT 411 (AAC)

UKUT-AAC
TMcG v Secretary of State for Work and Pensions
[2012] UKUT 411 (AAC) · 2012-11-12
[1]This case is about the principle that justice must not only be done, but it must be seen to be done.[2]When a social security claimant makes an appeal, he or she is sent an enquiry form by HM Courts and Tribunals Service (HMCTS). The second question on that form asks:
“Do you want to have a hearing where you and your representative, if you have one, can meet the Tribunal and put your case?”
The Appellant is invited to answer that question by ticking the “Yes” or “No” box as preferred,[3]In the present case the Appellant’s award of employment and support allowance (ESA) had been withdrawn. This was because he had scored 0 points in the light of the ATOS medical for the “limited capability for work assessment”. He appealed to the First-tier Tribunal (FTT), ticking the “Yes” box on the enquiry form for a hearing. He attended the tribunal venue. The FTT allowed his appeal. The Appellant now appeals to the Upper Tribunal with my permission.[4]The Appellant’s appeal to the Upper Tribunal succeeds because the FTT denied him an oral hearing – although he had attended the tribunal venue on the right day and at the right time, he never got further than the waiting room. The FTT allowed his appeal without hearing from him in person and sent him home. That cannot be right. So what actually happened on the day of the FTT hearing?[5]The FTT’s record of proceedings stated simply that “The Tribunal allowed the Appeal on the papers alone and did not hear oral evidence from [the Appellant]” (emphasis in the original). The FTT’s statement of reasons explained that the following procedure had been adopted:
“[The Appellant] requested an oral hearing and attended to give evidence. The Tribunal considered the information in the Tribunal bundle and allowed the appeal on the basis of the papers alone. No oral evidence was taken from [the Appellant].”
[6]The Appellant’s first ground of appeal put the matter rather more graphically:
“I attended a First-tier Tribunal at Stevenage on 30 th Jan 2012 with my wife. When we arrived we were greeted by a gentleman who showed us to a room and were seated, after approx 5 mins a lady appeared and told me ‘You can go now, we have discussed your case and you have won, so you can go’. There was no explanation or nothing so therefore because I requested an oral hearing but one did not take place I feel that an error of law has occurred and that there has been a breach of procedure.”
[7]The Appellant’s appeal to the Upper Tribunal is allowed for that very reason. Both Mr Wayne Spencer, the Secretary of State’s representative, and the Appellant have indicated that they are content for me to set aside the FTT’s decision on that basis and to direct a fresh hearing. So why has this appeal been brought at all if the Appellant has won at the FTT?[8]One might be forgiven for wondering why the Appellant has brought this further appeal to the Upper Tribunal when he had ‘won’ his case at the FTT. However, on the particular facts of this case he might have achieved a still more favourable outcome if he had been able to present his case at the oral hearing that he had asked for.[9]On his ESA50 questionnaire, the Appellant had explained that he had a heart condition (atrial fibrillation) and was undergoing further investigations. He referred to chest pains and breathlessness. In answer to questions on the ESA50 about various physical and mental, cognitive and intellectual functions, he indicated that he could do them all without any difficulty.[10]At his ATOS medical, the registered nurse noted the Appellant as having a heart condition, diabetes and epilepsy. The fact that he had not referred to any physical or mental restrictions on his ESA50 form was also noted. The Secretary of State’s decision-maker agreed with the descriptors chosen by the registered nurse and found that the Appellant was no longer entitled to ESA.[11]In his letter of appeal, the Appellant explained that he was shortly to have an operation to have a stent fitted. He added:
“I may not have reached your criteria or scored any points, but I can assure you that at this moment in time I do not feel well enough to resume work, but I do want to get back into the working environment and I am prepared to attend Work Focused Interviews even if it means that I have to change to Jobseeker’s Allowance.”
[12]The FTT allowed his appeal, confirming that the Appellant scored 0 points, but concluding that there were exceptional circumstances under regulation 29 of the Employment Support Allowance Regulations 2008 (SI 2008/794). According to the statement of reasons:
“The Tribunal found, with the benefit of advice from its medical member, that until [the Appellant] had undergone an angiogram and any treatment identified as needed, the severity of his heart condition could not be known. It found that to place him back into the labour market would impose a substantial risk to his physical health and that Regulation 29(2)(b) was satisfied. The nature of [the Appellant’s] occupation was not immediately relevant but the activities of attending job interviews and undertaking almost any form of employment would place him at risk. He expressed the view that he was able to attend work focused interviews and the Tribunal did not find that he would be at substantial risk if he had to do so. It did not find that he satisfied the circumstances of Regulation 35.”
[13]I interpose there that a person who does not score 15 points on the medical assessment may still be treated as having limited capability for work, and so in the ‘work-related activity group’, if one of the exceptional circumstances in regulation 29 applies. However, if the person meets one of the exceptional circumstances set out in regulation 35, then he or she is treated as having limited capability for work-related activity and being in the ‘support group’.[14]At the outset of the ESA regime, a claimant in the support group enjoyed two major benefits over the individual in the work-related activity group – access to a higher rate of weekly benefit and being exempt from the mandatory requirement to engage in “work-related activity”, a term left undefined by legislation, which in practice meant occasional work-focused interviews.[15]However, recent changes have increased the advantages of being placed in the support group over the work-related activity group. First, the “conditionality” provisions (including sanctions) affecting the work-related activity group were increased with effect from 1 June 2011, extending the scope of work-related activity beyond work-focused interviews to include e.g. work experience and other schemes (see the Employment and Support Allowance (Work-Related Activity) Regulations 2011 (SI 2011/1349)) . Secondly, the 365-day time limit on entitlement to contributory ESA, introduced with effect from 1 May 2012, does not apply to those claimants in the support group (section 1A(5) of the Welfare Reform Act 2007 as amended by the Welfare Reform Act 2012, section 51(1)).[16]In the present case there was an unfortunate error in the FTT’s decision notice issued on the day. This document recorded the tribunal’s conclusion that the Appellant did not score sufficient points but that regulation 29 applied. However, it also stated that the Appellant was entitled to “ESA with the support component” but then contradicted itself by later recording that he did not satisfy Schedule 3 or regulation 35 (the criteria for the support group). This contradiction took two months to be sorted out before a corrected decision notice was issued, leaving the Appellant understandably perplexed. He then had to wait a further four months for the FTT’s statement of reasons.[17]The FTT may possibly have taken the Appellant’s statement in his letter of appeal that “I am prepared to attend Work Focused Interviews” as a concession on his part that he did not meet the criteria for the support group. If so, it was wrong to do so, not least as there is nothing to stop a claimant placed in the support group from asking to see a personal adviser of their own volition. In addition, as noted above, work-related activity may well involve more than simply occasional attendance at work-focussed interviews. The FTT’s conclusion that the Appellant was not “at substantial risk” if required to do so (i.e. if placed in the work-related activity group) may or may not have been well-founded. The fundamental problem, however, was that this was a conclusion reached by the tribunal without hearing from the Appellant, who had asked for an oral hearing. The right to an oral hearing[18]The right to an oral hearing in public is a fundamental tenet of the justice system. It is enshrined both in the common law and under the European Convention on Human Rights (in article 6). There are, however, exceptions to the general principle. There are, for example, situations in which it may be appropriate to have appeals dealt with on the papers (see Schuler-Zgraggen v Switzerland - 14518/89 [1993] ECHR 29 at [57]-[58], especially if an affected individual elects for that mode of disposal).[19]The Appellant here had a right of appeal to the First-tier Tribunal by virtue of section 12 of the Social Security Act 1998. Rule 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) provides that a FTT “ must hold a hearing before making a decision which disposes of proceedings” (emphasis added) unless the parties have consented to (or not objected to) the matter being decided without a hearing (rule 27(1)(a)) and the FTT considers that it is able to decide the matter without a hearing (rule 27(1)(b)). A “‘hearing’ means an oral hearing” (rule 1(2)).[20]In the present case the FTT may well have decided that the condition in rule 27(1)(b) was satisfied (although it did not say as much). However, the FTT simply ignored the requirement laid down in rule 27(1)(a). There was simply no evidence that the Appellant had consented to the matter being decided without a hearing. Indeed, his very presence in the tribunal waiting room was strong evidence that he wanted to have an oral hearing.[21]It gets worse. Rule 28 provides that “Subject to rule 30(5) (exclusion of a person from a hearing), each party to proceedings is entitled to attend a hearing.” Thus the Appellant had, in effect, an absolute right to attend his hearing (unless, of course, he was being disruptive, which obviously did not apply). The FTT’s approach in this case denied him that right.[22]I therefore conclude that the FTT’s decision involves an error of law for the reasons above. I set aside the FTT’s decision, which now has no effect, and direct a re-hearing before a new tribunal.[23]I should perhaps add a rider here by way of general guidance. Tribunals necessarily have a fairly broad discretion as to how they conduct their proceedings, within the constraints set down by the procedural rules. When previewing a particular case before a hearing, a tribunal might well form the view that the appeal is bound to succeed. In some such cases the panel may also have been informed by the clerk that, for example, the Appellant is in the waiting room but is visibly distressed. In those circumstances the best course of action is arguably to get the hearing started as soon as possible, to explain to the Appellant that, having read the papers, the tribunal proposes to allow the appeal and explaining what the outcome would be. It may also be appropriate to give brief oral reasons (e.g. “we were particularly persuaded by the very helpful letter from your doctor”) and then to ask if there is anything that the Appellant would like to add or to ask. In that way the Appellant’s right to the oral hearing, as requested, is respected whilst the procedure is kept as informal as possible. What happens next: the new First-tier Tribunal[24]There will need to be a fresh hearing of the appeal before a new FTT. Although I am setting aside the FTT’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether or not the Appellant is entitled to ESA and in particular whether he should be placed in the support group for ESA. That is a matter for the good judgement of the new tribunal. That tribunal must review all the relevant evidence and make its own findings of fact.[25]In doing so, the new FTT will have to focus on the Appellant’s circumstances as they were in September 2011, i.e. the date of the decision under appeal. By the time of the re-hearing the Appellant may be better, worse or the same. However, the law says that a tribunal “ shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” ( Social Security Act 1998, s.12(8)(b), emphasis added ).[26]The new tribunal should also note that the issue as to whether or not the “exceptional circumstances” exemptions in regulations 29(2)(b) and 25(2)(b) require a different approach is an issue currently before the Upper Tribunal in the appeal under file reference CE/3261/2012. Conclusion[27]I conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)).[28]So the case now needs to be reheard by a new First-tier Tribunal (FTT). I cannot predict what will be the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the re-hearing of the appeal before the new FTT will succeed on the facts .[29]So the new tribunal may reach the same, or a different, decision to that of the previous tribunal. It all depends on the findings that the new tribunal makes. Signed on the original Nicholas Wikeley on 12 November 2012 Judge of the Upper Tribunal

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