SS v Secretary of State for Work and Pensions (ESA) (Tribunal procedure and practice (including UT) : tribunal practice) [2014] UKUT 217 (AAC)
[1]Both parties having not objected to the First-tier Tribunal’s decision of 16 September 2013 (“the tribunal”) being set aside for error of law and the matter being remitted to a freshly constituted First-tier Tribunal, and my agreeing with that result, I set the tribunal’s decision aside for the following reasons.[2]The tribunal erred in law, in my judgment, in deciding the appeal without a hearing.[3]The history of the listing of the appeal at the First-tier Tribunal is not fully set out in the appeal bundle and can only be properly considered with the documents from the left hand side of the First-tier Tribunal’s file. The history reveals a significant series of errors.[4]The appeal was first listed to be dealt with on the papers on 21 March 2013 (page 74). Prior to this the appellant had written a letter, dated 15 February 2013 (on the left hand side of the First-tier Tribunal’s file - “LHS”) in which she seems to refer to not having received the enquiry form (which “ must have gone astray ”). The letter continues by saying that the appellant wished to continue with her appeal “ but due to my health, my husband will be representing me ”. That letter from its dates must have accompanied the form GAPS 1301/97 (Appellant) (LHS), in which the appellant had ticked the box saying she wished to continue with her appeal “ without my attending a hearing ” (my underlining), but had added to this the important qualification that she would like “ my husband to represent me ”. Read together it seems to me that the most tenable reading of these two documents was that the appellant was asking for a hearing of her appeal at which her husband would attend on her behalf to represent her: indeed, I struggle to see how they can be read otherwise.[5]The appeal was then listed to be dealt with on the papers - thus contrary to the appellant’s wishes and rule 27(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the “TPR”) - on 21 March 2013 (p.74). It is would seem that that First-tier Tribunal did not have regard to the left hand side of the First-tier Tribunal’s file or the correspondence referred to above as it directed that the appellant should attend to give evidence. In any event, that tribunal made clear directions that the appeal was to be listed for a hearing at Liverpool after the medical records had been received “ because the appeal is unsuitable for hearing in the absence of the appellant ”. Those directions were not qualified by the appellant having to ask for a hearing (which in any event would have been unnecessary given what she had already said).[6]The appeal was then listed for determination on the papers in Bolton on 20 June 2013 (LHS). Such a listing was wholly contrary to directions of the 21 March 2013 tribunal, as in fairness the 20 June 2013 tribunal recognised. However, the 20 June 2013 tribunal then, in effect, countermanded the directions of the 21 March 2013 tribunal by directing that the appeal was to be adjourned for a paper determination. No reasons were given why this second tribunal considered the first tribunal’s direction no longer needed to be followed. Moreover, it would seem that this second direction was (wrongly) made without the tribunal having noted the 15 February 2013 letter or the GAPS 1301/97 (Appellant) form: had it done so then I struggle to see the proper basis for the 20 June 2103 denying the appellant her right to a hearing (albeit one she would not attend) and requiring her to re-state her wishes.[7]Further, I struggle to understand the sense of the 20 June 2013 tribunal’s directions even in their own terms. They start with an unqualified direction that the appeal is to be adjourned for a paper determination: how then was the appellant’s view to affect this (assuming she had not asked for a hearing before and then did so in response to these directions)? Secondly, the tribunal’s basis for adjourning was that the appeal had been wrongly listed as a paper case, yet by its direction the tribunal said the appeal was to continue to be so (wrongly) listed. That makes little, if any, sense.[8]The next event is a GAPS entry from 15 August 2013 saying that the tribunal had had no response from the appellant to the 20 June 2013 adjournment notice inviting her to request an oral hearing (LHS). Again, the fact that the appellant had already asked for a hearing at which her husband would attend seems to have been lost. This then led to the appeal being listed for decision on the papers on 16 September 2013.[9]Given this history, in my judgment the 16 September 2013 tribunal’s consideration of rule 27 of the TPR was significantly inadequate. It seems to do no more than ritually recite what the rule says with no consideration of the facts of the case. For example, even assuming the tribunal had not noticed the GAPS 1301/97 (Appellant) form and the 15 February 2013 letter, it is difficult to see on what evidential basis a finding could be made that the appeal had been listed for determination on the papers “ in accordance with the appellant’s wishes ”. Further, there was no hearing for the appellant to attend and so it was simply wrong to say “ the appellant did not attend the hearing ”: if that was the case then it was rule 31, and not 27, which ought to have been in play.[10]I add, if I may, that given the above I struggle to understand why the application for permission to appeal of 18 November 2013 (page 102) - in which it was squarely raised that the appellant had asked for a hearing of her appeal - was not treated in the alternative as an application for set aside under rule 37 of the TPR, and the 16 September 2013 decision set aside.[11]For these reasons, the tribunal’s decision dated 16 September 2013 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 in accordance with the law and once it has properly considered all the relevant evidence at a hearing. The appellant’s husband will be able to attend that hearing and represent her. ( Signed) S. M. Wright Judge of the Upper Tribunal Dated 15 th May 2014
Cited in 1 later judgment