PH v Secretary of State for Work and Pensions (ESA) (Tribunal procedure and practice (including UT) : tribunal membership and procedure) [2015] UKUT 553 (AAC)

UKUT-AAC
PH v Secretary of State for Work and Pensions (ESA) (Tribunal procedure and practice (including UT) : tribunal membership and procedure)
[2015] UKUT 553 (AAC) · 2015-09-04
This appeal by the claimant is dismissed .The decision of the First -tier tribunal of 8 October 2013 under reference SC241/13/00370 is confirmed.

REASONS

The issue in this case is whether there was an error of law in the decision of the First-tier tribunal (‘FTT’) to proceed to determine the claimant’s appeal in relation to Employment and Support Allowance (‘ESA’) without a medical member being present.The claimant had been in receipt of ESA on the basis that she was suffering from anxiety and depression and osteoarthritis. She completed an ESA50 questionnaire which was mislaid before the FTT commenced. She attended a medical examination on 2 May 2012 when she was allocated no points in relation to ESA descriptors. On 24 July the decision maker determined that the claimant was not entitled to ESA. The claimant appealed that decision. The claimant sets out her case in a detailed letter at p16.At the First-tier tribunal (‘FTT’) hearing on 8 October 2013, the hearing was due to take place before a judge and medical member, in line with requirements. The medical member was held up. The judge records (in the Statement of Reasons p68) that:
‘ the medical member had contacted the tribunal administration to warn that he would, because of road traffic conditions, be late. He had not given an indication of his likely time of arrival. It was a day when there were known to be very substantial difficulties in road travel arrangements. At 10am, the time for which the appeal was listed, I invited the claimant and her sister into the hearing room to explain the situation. The claimant was anxious to have her appeal dealt with. I explained that I could deal with the matter alone but that this would mean there was no doctor on the Tribunal.
Paragraph 15(6) of Schedule 4 of the Tribunals, Courts and Enforcement Act 2007 provides ‘where..a matter is to be decided by two or more members of a tribunal, the matter may, if the parties to the case agree, be decided in the absence of one.of the members chosen to decide the matter.’. The respondent has given consent for the matter to proceed in his absence in such circumstances: paragraph 29.8 of the Bench Book 12 th Edition. The claimant, after consultation with her sister, also gave her consent to the matter proceeding in the absence of the medical member of the Tribunal. The circumstances were exceptional, in that there was considerable transport disruption and the arrival time of the doctor was not known. There was little medical evidence to assess. There was only one hearing room in the Tribunal centre so it was not possible to locate another medical member to deal with the appeal. The claimant did not wish the matter to be further delayed. In the circumstances, I decided that I should go ahead with the appeal in the absence of the medical member of the Tribunal. In the event, the medical member of the Tribunal arrived at the Tribunal centre at the conclusion of the hearing’.I note from the Record of Proceedings (p55) that the claimant was told that the absence of the GP ‘means no medical input’ .The FTT upheld the Secretary of State’s decision. The claimant appeals to this court on the basis that she was not aware of the full implication of her decision, not told of other options open to her, that a medical expert’s knowledge would have been invaluable, that because she was anxious she made an unwise decision, and the missing ESA50 meant information was not taken into account. Leave to appeal was given by

Judge Lloyd-Davies on 11 May 2015 on these grounds:

‘was the tribunal correct to proceed in the absence of the medical member? Should the tribunal have started again when the medical member arrived?’
Neither of those grounds are errors of law. The claimant now considers her decision unwise, but that does not allow me to reverse the decision; I can only do so if there has been an error of law.The judge correctly identified his power to proceed without the medical member under paragraph 15(6) of schedule 4 to the Tribunals, Courts and Enforcement Act 2007 . If there was any doubt about the meaning of that paragraph, it was stated in CDLA/1579/13 that ‘assuming as seems likely that a medical practitioner had originally been chosen to decide the matter but had unexpectedly been prevented from attending, under sub-pararaph 15(6) of Schedule 4 to the 2007 Act, the case could have gone ahead if the parties had consented’ .The judge correctly identified that the respondent had given implied consent because of paragraph 29.8 of the Bench Book 12 th Edition which says that the DWP does not need to be consulted (and therefore impliedly gives consent) where there are exceptional circumstances such as severe weather or transport disruption. Whether the circumstances were exceptional was a matter of fact for the judge who was in possession of the relevant information and I have no grounds for interfering with that finding.The judge properly explained to the claimant the choice which she faced. The claimant was with her sister who it is clear from the record was able to participate in proceedings. She was given time to consult with her sister. Although the claimant has mental health difficulties it has not been suggested that she has difficulties with understanding. The reasons given by the complainant for making the decision (p111) include these : she was so stressed that she could not face coming again, and re-arrangement with her sister who accompanied her would not be easy. That demonstrates that she had the time and capability to give informed consent. There is no indication that the claimant was put under time pressure to make a decision, or pressured to make a decision one way or the other; indeed I note at the end of the hearing that she thanked the judge for putting her at ease.The judge considered all relevant factors when making his decision. In particular, the judge noted that there was little medical evidence to assess. I concur with this; the judge accepted the evidence given by the claimant, explored functionality in depth, and reached a reasoned conclusion that the undisputed difficulties with functioning did not meet the threshold to be awarded points. There were no significant medical matters in issue.There is a dispute as to whether the doctor arrived ten minutes after the hearing had started or at the end. That is not a factual dispute which I need to resolve. The option of awaiting the doctor or re-starting was not realistically open to the judge given that(i) he had no indication of when the medical member expected to arrive and(ii) the medical member would need time to read the papers once he arrived.In relation to the missing ESA50,I note the following: the healthcare professional makes reference to the ESA50 such that it is possible to identify which descriptors were relied on; the claimant set out her case in some detail in documents which were before the FTT; the FTT identified that the ESA50 was missing and explored relevant descriptors in detail and there is no suggestion that there was a piece of information in the ESA50 which was not otherwise before the FTT. The FTT was entitled to proceed without the ESA50, and to do so was not an error of law.It follows that, in the absences of errors of law, the FTT’s decision stands.

Upper Tribunal Judge Kate Brunner QC

Signed on the original on 4 September 2015

Cited in 1 later judgment