ST v Secretary of State for Work and Pensions (ESA) [2012] UKUT 469 (AAC)

UKUT-AAC
ST v Secretary of State for Work and Pensions (ESA)
[2012] UKUT 469 (AAC) · 2012-12-05
[1]This is an appeal by the claimant from a decision of the Burnley First-tier Tribunal (SEC) dated 29.11.11. I will refer to this from now on as “the tribunal”. The tribunal upheld the decision of the Secretary of State for Work and Pensions of 5.03.11 to the effect that the appellant did not have limited capability for work and so was not entitled to employment and support allowance (“ESA”) with effect from 5.03.11. Issue[2]The issue on this appeal is whether there is a breach of natural justice and the appellant’s right to a fair hearing enshrined in article 6(1) of the European Convention on Human Rights (“the Convention”) when a previous ESA85 medical report was not put before the First-tier Tribunal considering an appeal from a Secretary of State’s decision that arises from a subsequent ESA85 medical report concerning the same claimant. In addition, may such a breach arise even if the appellant had the previous ESA85 medical report but did not put it before the First-tier Tribunal?[3]Similar considerations may also arise where the document not put before the First-tier Tribunal is a previous First-tier Tribunal decision which allowed the appellant’s appeal and found the appellant to have limited capability for work or limited capability for work related activity; though those are not the relevant facts here Permission to appeal[4]Permission to appeal to the Upper Tribunal was refused in the first instance by a District Tribunal Judge on 31.01.12 but was granted by Upper Tribunal Judge Turnbull on 24.04.12. Judge Turnbull granted permission to appeal on the basis that “ [i]t is arguable that there was a breach of a natural justice in that the Secretary of State did not put before the Tribunal the report of the examining doctor following a medical examination which apparently took place in May 2010 (apparently the same doctor as the one who conducted the examination in February 2011), following which the Claimant was apparently considered to have limited capability for work: see the letter at page 71. ”. The Secretary of State’s Response[5]The Secretary of State supports the appeal on this ground, in a submission dated 24.08.12. That submission continues: “ [g]iven that the burden of proof was on the Secretary of State, the claimant was entitled to have the Secretary of State put before the tribunal any previous papers relating to the award, especially as the claimant has referred to her condition deteriorating and that the previous assessment was within only a year of the current one. The tribunal failed to call for the papers and I would agree that it has erred in law by this omission ” [1] . The Appellant’s Observations in Reply[6]Those acting for the appellant filed observations in reply on 20.09.12. These set out that the appellant had no objection to the decision being set aside and remitted to a new tribunal. Upper Tribunal’s Decision[7]The appeal has been passed to me for decision. No party has sought a hearing of this appeal to the Upper Tribunal and I am satisfied, in any event, that the appeal can be decided without a hearing.[8]In my judgment, the decision of the tribunal was erroneous in law and has to be set aside. As it is agreed between the parties that the tribunal erred in law and there is no dispute between the parties as to the basis of the error of law, I could say no more. However, as the point may be of some practical importance to appellants, the Secretary of State and the First-tier Tribunal (Social Entitlement Chamber) generally, and as it seemingly is not common practice for the Secretary of State to put previous ESA85 medical reports before the First-tier Tribunal, I consider I should address the issue more extensively. Error of Law[9]The error of law in this appeal, in my judgment, was that the appeal proceedings leading to the tribunal’s decision breached the appellant’s right to a fair hearing of her appeal under article 6(1) of the Convention because the tribunal did not have before it the May 2010 ESA85 medical report, and that error vitiates the tribunal’s decision. Article 6(1) of the Convention[10]Judge Turnbull expressed himself in terms of the common law and natural justice considerations when he granted permission to appeal. I prefer to express my reasoning in terms of article 6(1) of the Convention rather than the rules of natural justice under the common law because:(a) it seems to me more apt to now refer to article 6(1) of the Convention rather than the common law rules of natural justice (see, similarly, CJSA/5100/2001 and CIB/2751/2002 ), and(b) section 6(1) and 6(3) of the Human Rights Act 1998 makes it clear that the duty to act compatibly with a Convention right (here, the appellant’s right to a fair hearing under article 6(1) of the Convention) extends just as much to the Secretary of State for Work and Pensions exercising functions as a decision-maker and respondent to an appellant’s appeal as it does to the First-tier Tribunal. However, I do not consider that any different result would apply if the matter was analysed in terms of natural justice.[11]There can be no dispute that an appeal against a decision concerning entitlement to employment and support allowance does concern the “ determination of [a person’s] civil rights ”, and thus falls within article 6(1) of the Convention: see, for example, Salesi –v Italy (1193) 26 EHRR 187, R(IS)6/04, R(IS)15/04 and DG -v- SSWP (ESA) [2010] UKUT 409 (AAC) .[12]The critical question is, therefore, whether the appellant had a fair hearing of her appeal when the tribunal did not have before it the previous ESA85 report. To assess this it is necessary to consider the relevant background to the appeal to the tribunal. Relevant Background[13]The Secretary of State now accepts that the appellant was the subject of a medical assessment in May 2010 that led to the provision of an ESA85 medical report in May 2010. Although he does not say so expressly, the Secretary of State would seem also to accept that that May 2010 ESA85 report was one which, in the appellant’s words, she “passed”, and that then led a decision maker to find that the appellant had limited capability for work, though no date is given for that decision. For reasons which I will come to shortly, this potential ambiguity no longer matters because the appellant has supplied a copy of the ESA85 medical report dated 25.05.10.[14]I was initially troubled about whether it could be said that the May 2010 ESA85 had in fact led a decision maker on behalf of the Secretary of State to supersede the initial awarding decision or not. The Secretary of State’s appeal response to the tribunal does not really help in this respect as it does not say when the appellant first claimed and was awarded ESA. The most likely implication from what is said in the appeal response is that the appellant first claimed ESA in February 2010 and she was awarded what is commonly called the assessment phase rate of ESA with effect from 24.02.10. If that is right then the provision of the May 2010 ESA85 medical report ought to have led to that initial awarding decision being superseded on the basis that the appellant had now been found to have limited capability for work and therefore entitled to a higher monetary award of ESA. If that is correct then the tribunal were not only missing the May 2010 medical report ESA85 but were also proceeding on a false premise that the last relevant decision before the one under appeal to them was the 24.02.10 decision.[15]The only alternative scenario I can construct, though it seems far less likely (not least because it suggest two medical assessments within a few months of each other), is that the appellant claimed and was awarded ESA before February 2010, she was paid the assessment phase rate of ESA up to 24.02.10, she was subject to a medical assessment in or before February which she “passed”, and the ESA85 medical report from that medical assessment then led the Secretary of State’s decision maker on 24.02.10 to find that the appellant had limited capability for work, and award the relevant higher rate of ESA, with effect from 24.02.10. If this scenario is correct then the appellant “passing” a second medical assessment shortly thereafter in May 2010 may not have required the 24.02.10 decision be superseded as she still had limited capability for work and was still entitled to the same rate of benefit; and therefore the last operative decision may have been the 24.02.10 decision. However, if this scenario is correct then there were two ESA85 medical reports, both of which the appellant “passed”, which the tribunal was not made aware of.[16]Whichever scenario is correct, however, none of this evidence was before the tribunal that decided the appeal. I will proceed on the basis that it is the first scenario which is the correct one. This is because(a) it is far more likely,(b) the Secretary of State accepts that there was a May 2010 ESA85 medical report but says nothing about their being another and earlier ESA85 medical report, and(c) the appellant makes no mention of an ESA85 report earlier than the May 2010 one.[17]The appeal response provided to the tribunal by the Secretary of State referred to the appeal being against a decision dated 5.03.11 and described that decision as being a supersession of a decision dated 24.02.10. In other words, it told the tribunal that the 5.03.11 decision was the first time that the 24.02.10 decision had been superseded and, as a consequence (albeit by way of inference), that the 22.02.11 ESA85 medical report was the first and only medical assessment that the appellant had undergone in relation to ESA. There was no representative for the Secretary of State at the tribunal hearing. Thus the totality of the evidence put before the tribunal by the Secretary of State made no reference at all to the 25.05.10 ESA85 medical report.[18]Nor, however, as far as I can see, did the appellant, at least before the tribunal which heard her appeal. The ESA50 form she completed on 19.01.11 makes no mention of the previous assessment, nor does her appeal form on page 62. In fairness to the appellant that may be because she assumed that the Secretary of State already had that information and would provide it when necessary. From my reading of the record of proceedings no mention was made of the May 2010 ESA85 medical report either. It is not clear whether the tribunal asked the appellant about this. Again in fairness to the appellant, she may still not have realised the significance or importance of the May 2010 ESA85 medical report at that stage.[19]However on 27.01.12 the appellant wrote a letter to the office of the First-tier Tribunal asking, amongst other things, that the tribunal’s decision of 29.11.11 be set aside. That letter is on page 71 of the Upper Tribunal’s appeal bundle. In that letter the appellant referred for the first time to her first medical assessment in May 2010 and attached to that letter a copy of the ESA85 medical report dated 25.05.10. That shows that on that date the doctor, who it seems was the same doctor who carried out the 22.02.11 assessment, assessed the appellant as scoring 9 points for walking, 6 points for standing and 6 points for bending or kneeling under the pre-28.03.11 version of Schedule 2 to the Employment and Support Allowance Regulations 2008. (It is worth emphasising at this stage that the 5.03.11 decision of the Secretary of State under appeal was also made under the pre-28.03.11 version of Schedule 2 to the Employment and Support Allowance Regulations.) It is not clear from the appellant’s letter of 27.01.12 why she only provided and relied on this 25.05.10 medical report at this late stage. From the chronology it may be that she had only realised its importance and obtained it from the Department for Work and Pensions after she received the tribunal’s statement of reasons for its decision, but that may be no more than speculation.[20]The District Tribunal Judge on 31.01.12 refused to set aside the tribunal’s decision, stating that there was no procedural irregularity. There is no challenge to this refusal to set aside decision. However, for the reasons I set out below, I consider there was a fundamental procedural irregularity, namely the failure of the Secretary of State to carry out his obligation to provide the tribunal with all the documents relevant to ensuring that the appellant had a fair hearing.[21]Why then may it be said that the tribunal erred in law in failing to have regard to evidence that no-one put before it? The answer, in my judgment, lies in understanding the particular role the Secretary of State has as a party to the appeal and the responsibilities that come with that role. Secretary of State’s Role[22]It has long been recognised that proceedings before a First-tier Tribunal on social security appeals are not adversarial but are instead inquisitorial: see R-v- Medical Appeal Tribunal (North Midland Region, ex parte Hubble [1958] 2 QB 228. The function of the social security adjudication system, including first-instance decision makers and tribunals on appeal, is to assess correctly a person’s entitlement benefit. As Baroness Hale put it in Gillies –v- Secretary of State for Work and Pensions [2006] UKHL 2 , R(DLA)5/06, at paragraph [41]: “ the benefits system exists to pay benefits to those who are entitled to them. As counsel put it to us in Hinchy –v- Secretary of State for Work and Pensions [2005] UKHL 16 , [2005] 1 WLR 967 , the system is there to ensure, so far as it can, that everyone receives what they are entitled to, neither more nor less ”.[23]The role of the Secretary of State’s decision makers in this assessment process, both at the initial decision making stage and on appeal, is therefore not one where the decision maker is adverse to the claimant/appellant, but is rather one where he or she is assisting, as far as the decision maker can, in deciding the correct level of benefit for the claimant or appellant. And, crucially for present purposes, that will include providing information which the Secretary of State holds. This was described by Baroness Hale in Kerr –v- Department of Social Development [2004] UKHL 23 , R 1/04(SF), at paragraph [62] as follows:
“ What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced ”
. The decision in Kerr turned on whether any of the claimant’s siblings were in receipt of a relevant social security benefit at a particular time - information which only the Department for Social Development held – hence the focus of the language used by Baroness Hale in the last sentence. However, in my judgment the principle in Kerr is wider than this, and is to the effect that in the cooperative process of investigating a person’s entitlement to benefit the Department (or Secretary of State for Work and Pension in this case) is obliged to provide to that investigation all relevant information that it or he holds.[24]This perspective is given added force and focus once consideration is given to the tribunal rules concerning what the Secretary of State is obliged to include with or in the appeal response. The statutory authority for making these rules is found in section 2 of the Tribunals, Courts and Enforcement Act 2007. Section 22(4) of that Act relevantly sets out that the “ power to make Tribunal Procedure Rules is to be exercised with a view to securing…that, in proceedings before the First-tier Tribunal….., justice is done…that the tribunal system is accessible and fair..[and] that proceedings are handled quickly and efficiently ”. Pursuant to this, rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the “TPR”) provides that “ The decision maker must provide with the response…copies of all documents relevant to the case in the decision maker’s possession, unless a practice direction or direction states otherwise ”.[25]The key word here is “relevant”. The use of the word “must” also makes clear that the Secretary of State’s decision maker is under a legal obligation to provide the Fist-tier Tribunal with copies of all documents relevant to the case that he has in his possession: an obligation that is not on its face cut down by consideration of what the appellant might have in his or her possession and be able to put before the tribunal. Furthermore, there is no evidence of any practice direction or direction being in place on this appeal that would have excused the Secretary of State from providing copies of all relevant documents with the appeal response.[26]So, as far as I can see, the Secretary of State’s decision maker is obliged to provide the tribunal with all relevant documents in his possession, or at least explain to the tribunal which documents are not in his possession and why they are not.[27]Returning then to the facts on this appeal, the last operative decision before the 5.03.11 decision under appeal was not the 24.02.10 decision but must have been the supersession decision made by the Secretary of State on or after 25.05.10 following his receipt of the ESA85 medical report dated 25.05.10. For ease of reference I shall call this “the May decision”. Accordingly, what the Secretary of State’s decision maker had to provide to the tribunal was copies of all documents in his possession relevant to the 5.03.11 decision superseding that May 2010 decision. Relevance and supersession[28]What then were the “relevant” documents, and may it be argued that the 25.05.10 ESA85 medical report was not relevant? To explore this issue properly it is necessary to consider the supersession rules in respect of ESA.[29]However, before doing that I consider that two points need to be made.(a) Firstly, I assume, as I think I must, that the Secretary of State’s decision maker had in his possession the 25.05.10 ESA85 medical report. He certainly ought to have had because, as the Secretary of State recognises implicitly in his submission on this appeal, the evidence underpinning the last operative decision that a claimant had limited capability for work may well be material to a later decision saying that the claimant no longer has limited capability for work, especially if it is alleged by the claimant (as here) that she is no better and that her condition has in fact deteriorated.(b) But even if the Secretary of State has managed to lose or misfile the previous ESA85 medical report, his records must indicate that that such a report existed. Moreover, he must be aware of the previous limited capability for work decision that report led to (here what I have called the May decision), and that decision must be a relevant document because it is that decision which has been superseded.[30]At the very least, therefore, even if he does not have in his possession the previous ESA85 report, at a minimum the decision makers for the Secretary of State must in every appeal response on ESA limited capability for work appeals tell the First-tier Tribunal the terms of the decision that has been superseded. If that shows, as it should have here, that the decision superseded was a decision that the appellant had limited capability for work, that at least would allow the First-tier Tribunal to give proper consideration to whether the requirements of natural justice and/or article 6(1) of the Convention required it to obtain from the Secretary of State or the claimant the previous ESA85 medical report (or First-tier Tribunal decision) on which the limited capability for work decision was based: per CIB/3985/2001 (an authority which, in my judgment, applies with just as much force to previous limited capability for work assessments as it did to past personal capability assessments). .[31]The present position of the Secretary of State’s appeal response(s) referring to the wrong decision and, therefore, omitting to mention the previous limited capability for work decision, is, in my judgment, wrong and does not allow the First-tier Tribunal to decide these types of appeals properly and fairly. It means, in effect, that the Secretary of State’s decision maker is(a) misleading the tribunal,(b) acting contrary to what I will call his Kerr duty,(c) not conforming with his obligations under rule 24 of the TPR, and(d) breaching the obligations imposed on him by section 6 of the Human Rights Act 1998 to ensure that the appellant has a fair hearing of his or her appeal.[32]The above considerations apply to the limited capability for work decision that has been superseded. But may it be argued that rule 24(4)(b) of the TPR does not apply to the 25.05.10 ESA85 medical report because it is not “relevant” to the case?[33]At first blush that argument may seem tenable, for these reasons.(a) The basis for 5.03.11 supersession decision was the ESA85 medical report of Dr Majeed dated 22.02.11.(b) By virtue of section 10 of the Social Security Act 1998 and regulation 6(2)(r)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (the “DMA Regs”), a supersession decision “ may be made on the basis that the decision to be superseded is an employment and support allowance decision where, since the decision was made the Secretary of State has received medical evidence from a health care professional approved by the Secretary of State ”.(c) On its face, regulation 6(2)(r)(i) has done away with the need for the Secretary of State to establish the change of circumstances supersession ground found in regulation 6(2)(a) of the DMA Regs in this type of ESA decision.(d) Accordingly, or so it may be argued, all the Secretary of State has to show, and had to show on this appeal, to meet regulation 6(2)(r)(i) of the DMA Regs is that he had received medical evidence from a health care professional - here he had that in the form of Dr Majeed’s 22.02.11 ESA85 medical report - and that was all that was relevant to the 5.03.11 decision under appeal.(e) In other words, regulation 6(2)(r)(i) of the DMA Regs is met by the provision of, here, the 22.02.11 ESA85 medical report alone, continuing entitlement to ESA thus has to be judged on that report alone (whether the mere receipt of it or based on the contents of it – see further on this below), and therefore the previous ESA85 medical report is not relevant.[34]However, this analysis is, in my judgment, too simplistic and does not work. To start with, it cannot be the case that the mere receipt of the ESA85 medical report establishes the grounds for superseding the previous limited capability for work decision. If it was the case that it is the receipt of medical evidence from a defined person that of itself establishes the ground for supersession then the contents of the report are immaterial and can be ignored, which cannot be correct. That would lead to the absurd result that it was irrelevant what the medical evidence/ESA85 report says even where it clearly and entirely justifiably established beyond argument that the claimant had very limited capability for work. Moreover, it would leave unexplained the reasoned and rational basis for the Secretary of State’s decision that the person did not have limited capability for work.[35]Furthermore, and perhaps more fundamentally, it has to be borne mind that the outcome decision the Secretary of State, and then on appeal, the First-tier Tribunal, is concerned with is whether or not the claimant is entitled to employment and support allowance because he or she “has limited capability for work” under section 1 of the Welfare Reform Act 2007. That question cannot be answered in full by saying simply “ Well you don’t because I’ve received a medical report ”, because that does not answer the question under section 1(3)(a) of the Welfare Reform Act: has this person limited capability for work? That question can only be answered, in my judgment, by considering the contents of the ESA85 medical report and all other relevant evidence so as to decide whether on the facts and the law the person has “limited capability for work”.[36]It is true that the first stage of the arguments on ESA limited capability for work appeals may in some cases be about whether the Secretary of State received the medical evidence conforming with regulation 6(2)(r)(i) of the DMA Regs. This is because if the Secretary of State has not received such evidence then he cannot even begin to use regulation 6(2)(r)(i) of the DMA Regs (in which case he would either have to start again or try and construct an argument relying on change of circumstances under regulation 6(2)(a) of the DMA Regs). So, in this circumstance, receipt of the correct medical evidence is a necessary condition of the Secretary of State (and then on any appeal the First-tier Tribunal) superseding a previous ESA entitlement decision. But it is not the sufficient condition as well. That depends upon the decision maker going further and saying why the contents of the ESA 85 medical report, whether taken with or in preference to other relevant evidence, establish on the facts and under the ESA legal rules (usually Schedule 2 to the Employment and Support Allowance Regulations 2008) that the person does not have limited capability for work: see to similar effect CIB/1509/2004 .[37]However, once it is recognised that the decision to be reached is the substantive one of whether the person has limited capability for work, and that depends on weighing the evidence in the ESA85 medical report along with all other relevant evidence, then the ESA85 report cannot be the only relevant evidence. What other evidence is relevant will depend on the facts of each case. However, where, as here, it is plain from what is being said by or on behalf of the claimant that she is no better (and maybe even worse) since she was last awarded ESA or was last subject to a limited capability for work assessment, and where (as here) there has been no relevant supervening event such as a change in the law or a successful medical operation, I cannot see any lawful basis for the Secretary of State or his decision makers denying to the First-tier Tribunal the previous ESA85 medical reports concerning the appellant (or at least the knowledge that such existed, and the ESA decision(s) made subsequent to them, if they are lost and no longer in his possession). Where to draw the line?[38]Does this then oblige the Secretary of State to provide to the First-tier Tribunal in the appeal response all documents he holds in his possession about an appellant? No. It is only the documents that are relevant to the decision under appeal that this obligation attaches to. Here, the decision is a supersession of an ESA entitlement decision based on the limited capability for work assessment. That ought to provide the correct focus for what is relevant. For example, the level of the appellant’s capital is unlikely to be relevant to such an appeal but a previous ESA85 medical report falling within the same ESA award period is likely to be relevant.[39]It is for the Secretary of State’s decision maker to decide what is relevant, as it is he who is responsible for the appeal response. However, he must do so bearing in mind(a) his and the tribunal’s obligation under article 6(1) of the Convention to decide the appeal fairly, and(b) that the tribunal will not know what else the Secretary of State has in his possession that may be of relevance. In these circumstances it seems to me that the Secretary of State and his decision makers ought in all appeal responses to at least refer the First-tier Tribunal to all the documentary evidence in the Secretary of State decision maker’s possession that he considers may be relevant, whilst always providing that tribunal with copies of previous ESA85 medical reports (if still in the Secretary of State’s possession) in the circumstances referred to in the closing sentence in paragraph 37 above. Appellant has the ESA85[40]Does the fact that the appellant has the previous ESA85 medical report alter any of the above? Again, it depends, but in most cases it is unlikely to. In a rare case it may be that the appellant says in the letter of appeal words to the effect “ I am no better than when I last had a limited capability for work assessment, which I passed (see the full report attached), and I will argue on this appeal that I am the same now and should score the same points again ”. Rare for three reasons. First, because most claimants are unrepresented and will not understand the relevance of the previous ESA85 medical report (even if they were given it in the first place and have kept it). Second, because it is not clear that claimants are routinely provided with the full ESA85 report if they “pass” it and do not appeal the ESA decision made after that report. Third, because the claimants might assume that the Secretary of State still holds this information and will provide it to the First-tier Tribunal on a later but related ESA limited capability for work appeal.[41]If the appellant sets out in his or her appeal words to the above effect, then in compiling the appeal response as a result of the appeal the Secretary of State’s decision maker would be entitled not to include the previous ESA85 medical report with the appeal response (if, that is, he agrees with the appellant’s chronology). But short of this, I do not consider the Secretary of State can rely on what the appellant might have and might do with such information to remove from him the clear duty described above to provide the First-tier Tribunal with all the relevant documents in his possession.[42]On the facts of this case there is no good evidence that the appellant had a copy of the 25.05.10 ESA85 medical report at the time of her appeal to the First-tier Tribunal or the hearing of that appeal. As paragraph 19 above recounts, it is not clear when the appellant came into possession of the 25.05.10 ESA85 medical report, and there is certainly no reference to it before the appellant’s letter of 27.0.12. In these circumstances I do not consider there to be any basis for arguing that the clear and important duty imposed on the Secretary of State under rule 24(4)(b) of the TPR was removed or cut down by anything the appellant said or did before her appeal was heard by the First-tier Tribunal.[43]Accordingly, the breach of that duty by the Secretary of State’s decision-maker means that the decision arrived at by the First-tier Tribunal was erroneous in point of law.[44]I may add, and am comforted by the fact, that the Secretary of State does not argue the contrary; nor has he in fairness even hinted at such an argument on this appeal. I have merely posited the argument about mere receipt of the new ESA85 medical report in order to test what the law requires, with the aim of identifying the relevance (if any) of previous ESA85 reports within the scheme of ESA adjudication. Conclusion[45]It is for all these reasons that the tribunal’s decision dated 29.11.11 must be set aside. The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber). The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether her appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess once it has properly considered all the relevant evidence. ( Signed) S. M. Wright Judge of the Upper Tribunal Dated 5 th December 2012 [1] I agree, for the reasons that I give further below, that the Secretary of State was in error in not putting the previous ESA85 medical report before the tribunal, and that error then led to the appeal being decided in a manner that was contrary to the appellant’s right to a fair hearing, and because of this the tribunal erred in law. As such it is unnecessary for me to consider whether the tribunal erred in law in the sense of its failing to call for the previous ESA85 medical report to be put before it. A difficulty with this argument, and its particular focus, is that no one alerted the tribunal to there being a previous ESA85 medical report, nor was it necessarily obvious from the papers before the tribunal that a previous ESA85 medical report existed, and therefore it may be difficult to argue that the tribunal itself erred in law by not calling for a report that it did not know (or even suspected) existed

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