DC v Secretary of State for Work and Pensions (ESA) (Tribunal procedure and practice (including UT) : other) [2015] UKUT 150 (AAC)

UKUT-AAC
DC v Secretary of State for Work and Pensions (ESA) (Tribunal procedure and practice (including UT) : other)
[2015] UKUT 150 (AAC) · 2015-03-16
[1]An appellant’s recent admission to a mental health hospital should have been taken into account by the First-tier Tribunal when deciding whether to proceed with a hearing in his absence.[2]The Tribunal may treat an application for permission to appeal to the Upper Tribunal as an application to set aside the decision in question. In certain cases, the overriding objective of seeking to deal with cases fairly and justly may require this power to be exercised. Background[3]The appellant (“Mr C”) had an award of Employment and Support Allowance (ESA), which began in October 2010. Subsequently, the Secretary of State for Work & Pensions asked Mr C to complete an ESA questionnaire but he failed to do so. The Secretary of State then arranged for Mr C to be medically examined by a Healthcare Professional (HCP) which took place on 21 st May 2012.[4]The HCP’s opinion was that Mr C scored zero points in the Work Capability Assessment (WCA), used to decide whether a person has limited capability for work for ESA purposes. Of relevance to later events, the HCP recorded that Mr C was taking anti-psychotic medication (Olanzapine). Around this time, Mr C also supplied the Secretary of State with a letter from a “senior nurse practitioner” and a housing officer. Both said he had a psychotic illness.[5]The Secretary of State agreed with the HCP’s recommendation that Mr C merited zero WCA points. The Secretary of State decided that Mr C was not entitled to ESA because he did not have limited capability for work and superseded (terminated) his award. Mr C appealed to the First-tier Tribunal (“the Tribunal”).[6]When Mr C began his appeal, he was living in a Y.M.C.A. establishment. That is shown by a letter from his support worker, as well as the address given in his appeal form, both of which were dated July 2012.[7]Mr C’s hearing enquiry form, however, gave his address as a particular ward at a particular mental health hospital. He also stated he wanted an oral hearing of his appeal. The form was completed in January 2013.[8]The documents before the Tribunal showed, therefore, that between July 2012 and January 2013 Mr C left the Y.M.C.A. and became a hospital in-patient. Bearing in mind his established diagnosis of psychotic disorder, it is clear that something significant happened during this period. In fact, any reasonable First-tier Tribunal panel sitting in the Social Entitlement Chamber ought to have realised, in the light of that Chamber’s specialist training and medical expertise, that there was a real possibility that Mr C had become very mentally unwell indeed.[9]While Mr C’s admission to hospital came after the decision under appeal, it was not necessarily irrelevant. As with any post-decision evidence, it might have shed light on the circumstances as they stood at the date of the decision (so that taking the evidence into account would not breach section 12(8)(b) Social Security Act 1998). And it might also have had a bearing on Mr C’s ability to conduct his appeal and, thus, the First-tier Tribunal’s case management.[10]A hearing date was fixed, for 19 th August 2013, at St Helens. The Tribunal panel was comprised of a tribunal judge and a registered medical practitioner. Mr C did not attend on that date. The Tribunal decided to hold a hearing in his absence, making this note on the record of proceedings:
“Tribunal waited until 2.45 p.m. and no appearance. Tribunal satisfied [Mr C] had been notified of the hearing and considered interests of justice to proceed with the hearing in their absence (rule 31).”
It follows that the Tribunal knew Mr C was, at that time, residing in a hospital because the hearing notification letter was sent to him at the hospital.[11]The Tribunal dismissed the appeal and confirmed the Secretary of State’s decision. Its decision notice was sent to Mr C on 19 th August 2013.[12]On 30 th August 2013, a First-tier Tribunal official took a call from an individual described as Mr C’s mental health nurse. According to the Tribunal’s ‘GAPS’ information system, the nurse said Mr C was detained under the Mental Health Act 1983 and, on the day of his hearing, a nurse contacted the Tribunal to tell them so. I should note that GAPS has no record of anyone contacting the Tribunal about Mr C on the day of his hearing.[13]On 31 st August 2013, Mr C wrote to the Tribunal in which he gave “written authorisation to allow staff at [his] Hospital who have direct input into my care to discuss all aspects of my current appeal”. That letter gave Mr C’s address as the hospital.[14]On 8 th October 2013, the Tribunal’s statement of reasons was issued to Mr C and on 29 th October he responded by letter, indicating that he wanted to appeal to the Upper Tribunal. That was accompanied by a letter from a nurse at his hospital. This described how, on the date of the hearing, Mr C’s psychiatrist had refused to grant him leave of absence from hospital to attend the hearing.[15]On 13 th December 2013, a salaried judge of the First-tier Tribunal, whose decision notice contains an indecipherable signature, refused Mr C permission to appeal. Mr C applied to the Upper Tribunal for permission to appeal which I granted on 20 th June 2014. Why the Tribunal erred in law[16]When granting Mr C permission to appeal, I observed that the Tribunal may have erred in law by failing to check the GAPS database, before deciding that it was in the interests of justice to proceed with a hearing in his absence. I made that observation because the Tribunal’s record of proceedings made no mention of GAPS having been consulted.[17]I have now seen the contents of the GAPS database. It contains no entry to the effect that, on the day of the hearing, a nurse told a Tribunal official that Mr C was detained in hospital. If the Tribunal had checked the GAPS database, it would have made no difference to the material before the Tribunal. Failing to check GAPS cannot amount, therefore, to a material error of law.[18]The Secretary of State supports the appeal, arguing that the Tribunal did not lawfully decide to proceed with a hearing in Mr C’s absence because it failed to check the GAPS database. For the reason explained above, checking GAPS would have made no difference and I do not set aside the Tribunal’s decision on this ground. However, the Tribunal did make an error of law in another respect.[19]The error of law was the Tribunal’s failure to take into account a consideration that, on any view, was relevant, namely that Mr C had become a hospital in-patient. This undermined its decision to proceed with the appeal in Mr C’s absence.[20]Once it became apparent that Mr C was not in attendance, the Tribunal’s decision-making was governed by rule 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008:
“If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal- (a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and (b) considers that it is in the interests of justice to proceed with the hearing.”
[21]It can be seen that this confers a power (not an obligation) to proceed with the hearing if the conditions in rule 31(a) and (b) are met.[22]The overriding objective of the rules is to “enable the Tribunal to deal with cases fairly and justly” (rule 2(1)). Certain specified matters are to be taken as forming part of dealing with a case fairly and justly. This is because rule 2(2) says dealing with a case fairly and justly “includes” these matters, amongst which is “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings”. By rule 2(3), the Tribunal must “seek to give effect to the overriding objective” whenever it does either of two things, namely exercise a power given by the Rules or interpret any rule (or practice direction). Hence, the overriding objective is operative whenever a Tribunal interprets “interests of justice” in rule 31(b).[23]This Tribunal did in fact identify the need to comply with rule 31. Its statement of reasons says it “considered it in the interests of justice to proceed to hear the matter in the absence of the Appellant”. Nothing further is said. There is no identification of the matters taken into account and, as a result, no weighing of those factors to the extent that they pointed in different directions.[24]Rule 31 prohibited the Tribunal from proceeding with the hearing unless it considered it was in “the interests of justice to do so”. In deciding how that applied in Mr C’s case, the Tribunal was bound to seek to give effect to the overriding objective. As I explained above in paragraph 9, the documentary evidence, which revealed Mr C had gone from living in a Y.M.C.A. establishment to being a hospital in-patient, raised a clear possibility that Mr C’s mental health had deteriorated significantly. This should have been taken into account by the Tribunal when deciding whether it was in the interests of justice to proceed with the hearing. It should have considered the possibility that Mr C was unable to attend the hearing due to, or for reasons connected to, a deterioration in his mental health rather than for some other reason, such as simply not bothering to turn up. Without incorporating that consideration into its reasoning, it could not arrive at a defensible conclusion that it was in the interests of justice to proceed with the hearing in Mr C’s absence.[25]I therefore set aside the Tribunal’s decision and remit Mr C’s appeal to a differently-constituted First-tier Tribunal panel for complete re-hearing. The approach of the salaried judge who refused Mr C permission to appeal to the Upper Tribunal[26]I do not want to leave this case without saying something about the approach of the salaried tribunal judge who refused Mr C permission to appeal to the Upper Tribunal. While this is strictly unnecessary, since I have decided to set aside the Tribunal’s decision in any event, I do so because this case suggests there may be some lack of awareness of the flexibility within the Tribunal’s procedural rules.[27]I need to refer to certain of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.[28]Rule 37 gives the Tribunal power to set aside its decisions. The power is only available if the Tribunal “considers that it is in the interests of justice” to set aside and a condition in rule 37(2) is satisfied. Those conditions include that “a party, or a party’s representative, was not present at a hearing related to the proceedings”, as Mr C clearly was not.[29]Rule 37(3) requires an applicant to make a written application to the Tribunal so that it is received no later than one month after the date on which the decision notice (recording the Tribunal’s substantive decision) was sent to the party. While Mr C did write to the Tribunal within that period of one month, his letter cannot fairly be considered an application for set aside under rule 37 because all he asked the Tribunal to do was supply him with a statement of reasons. His letter did not describe any procedural irregularity of the sort which might fall within rule 37.[30]However, the rule 37(3) time-limit may be extended under the Tribunal’s case management powers in rule 5(3)(a).[31]Finally, there is the Tribunal’s power in rule 41 to treat an application for permission to appeal as an application for a decision to be set aside.[32]Drawing the strings together, here was a case in which a salaried judge of the First-tier Tribunal was faced with an application for permission to appeal alongside credible, one might say undeniable, evidence that the appellant was detained in hospital under the Mental Health Act 1983 on the day of the hearing. In the light of the overriding objective, it cannot be right for a judge in these circumstances simply to deal with the application for permission to appeal without considering whether to treat the application as an application for set aside under rule 37.[33]Since I can see no basis for doubting that Mr C was detained in hospital at the date of the hearing, I am irresistibly drawn to the conclusion that the appropriate response to Mr C’s application for permission to appeal should have been as follows:(a) to treat the application for permission to appeal as an application to set aside under rule 37;(b) to extend time for making the application under rule 5(3)(a); and(c) to grant the application on the basis that the rule 37 conditions were satisfied because (a) Mr C was not at the present at the hearing and (b) it was in the interests of justice to set aside the Tribunal’s decision. Directions Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, I direct as follows: (1) A rehearing of Mr C’s appeal must be held by the First-tier Tribunal. The Tribunal’s membership must not include either of the panel members of the Tribunal whose decision I have set aside. (2) Mr C is reminded that the law prevents the tribunal from taking into account circumstances not obtaining at 23 rd June 2012, when the Secretary of State took the decision under appeal (3) If Mr C has any further written evidence or submission that he wishes to put before the tribunal, it should be sent to the First-tier Tribunal’s office within one month of the date this Decision is issued. (4) Within one month of the date this Decision is issued, Mr C must inform the Tribunal of any special arrangements which he thinks would need to be made to allow him to attend the rehearing. (Signed on the Original) E Mitchell Judge of the Upper Tribunal 16 th March 2015

Cited in 2 later judgments