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Summary

This decision of a three-judge panel of the Upper Tribunal arises from the different approaches taken to the hearing of joined employment and support allowance (ESA) and disability living allowance (DLA) appeals taken in WS v SSWP (DLA) (Bulletin 230, p14) and PJ v SSWP (ESA) (Bulletin 224, p17). In the present decision, the three-judge panel held that where a claimant has current appeals concerning ESA and DLA, the hearings are to be held on completely separate sessions and by entirely differently constituted tribunals. The advocacy of 'concurrent' hearings in WS v SSWP (DLA) and 'consecutive' hearings in PJ v SSWP (ESA) were both rejected.

The issue before the Upper Tribunal was whether it was permissible for the First-tier Tribunal to hear joined ESA and DLA appeals (current appeals by the same claimant) either concurrently (ie, without a formal break in proceedings) or consecutively on the same day, without the membership of the tribunal being entirely different. In the Upper Tribunal, Mr Justice Charles and Judges Masher and Ward held, by a majority decision, that neither approach was permissible and that entirely separate hearings by different tribunals were required. The essential background to this issue is the rule on composition on membership of tribunals in the Practice Statement, 'Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 3 November 2008', issued by the Senior President of Tribunals. Under that, an ESA First-tier Tribunal is to consist of a legally qualified member and a medically qualified member, while a DLA First-tier Tribunal is to consist of those plus a disability qualified member.

Judges Masher and Ward considered that Judge Williams had been correct in PJ when he held that the Practice Statement referred to 'the whole decision-making process of a tribunal', including reading the papers and hearing evidence as well as making the final decision (paragraph 33). It followed from that that if there was a 'concurrent' hearing of both an ESA and a DLA appeal, there is an error of law in relation to the ESA appeal, in the 'knowing taking part' of the disability qualified member in the function of the making of the decision in the ESA appeal (paragraphs 34-5). Having established that the rule on tribunal membership applied to all parts of the hearing, it could not be accepted that participation of the disability qualified member in a concurrent hearing did not amount to participation in the ESA appeal - so Judge Lane in WS was wrong to hold otherwise. But, held Judges Masher and Ward, that meant that Judge Williams was also wrong in PS to hold that a tribunal could hear the appeals consecutively- ie, in the same session but with a break (paragraphs 37-9). Even if the DLA appeal was considered first, 'the claimant and any representative would be put in an impossibly unfair position in relation to the ESA appeal' (paragraph 49). In particular, in the event of an adverse decision on the DLA appeal, the short break afforded to the claimant in a 'consecutive' hearing would not give them time to property respond before the ESA part of the hearing began. By contrast, with completely separated hearings, the claimant would be able to property consider the decision and what further evidence or submissions could be made. Accordingly, holding entirely separate hearings of the appeals was the correct approach (paragraphs 48-51).

Summary

The claimant appealed against a decision that she was liable to repay a substantial overpayment of housing benefit and council tax benefit. She and her partner attended the tribunal hearing but the relevant council was not represented. The tribunal allowed the claimant's appeal. However the council subsequently applied for a set-aside of the decision on the ground that it had intended to be at the hearing but that the 'tribunal documentation advice' was received at the council on the day of the hearing, and that the appeals officer had telephoned the tribunal clerk and been told that the appeal would be adjourned. The claimant was unaware of the set-aside application, and was not given a chance to comment on it or on the subsequent decision to set the original tribunal decision aside on the grounds of absence of a party to the appeal, the First-tier Tribunal judge holding that the claimant had no such right, except regarding a review for official error. Eventually, the claimant appealed against the set-aside to the Upper Tribunal.

Judge Mark allowed the claimant's appeal and decided that the original tribunal decision should stand. The decision to set aside the original decision, taken as it was on the basis that a party adversely affected by it had no right either to receive notice of the application so as to make representations, or to apply to set it aside except on a review on the basis of error of law, was 'manifestly contrary to the basic principles of natural justice and to Article 6 of the European Convention on Human Rights (paragraph 14). It was hard to think of any judicial decision, said the judge, 'that does not require either that a party adversely affected should either be given the opportunity to be heard before the decision is made or to apply to set it aside within a short time of it being made' (paragraph 16).

Further, contrary to the council's submission and the opinion of the First-tier Tribunal judge who refused permission, there was a right of appeal to the Upper Tribunal against a decision to set aside a decision of the First-tier Tribunal. There was such a right against any decision of the tribunal, including an interlocutory decision, unless it was an excluded decision. The opinion of the First-tier Tribunal judge that a decision to set aside for absence of a party to the appeal, under rule 37(1) and (2)(c) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, Si No.2685, was an excluded decision was simply wrong (paragraph 13).

Furthermore, Judge Mark was satisfied on the facts of the case that the original tribunal judge was entitled to proceed on the day. For set-aside of that to have been correct, it was required under rule 37 not only that a party to the appeal was absent, but the other necessary condition for not proceeding was that it was in the 'interests of justice' to do so. That included why the council was not represented. On the full facts available, Judge Mark concluded that, in fact, notice of the appeal was received by the council in good time but that for some reason it was not adequately explained by the council and it was overlooked until the afternoon it was due to be heard. He also considered that on balance it was more likely that the appeals officer was told by the clerk not that there would be an adjournment but that the tribunal was likely to adjourn but that this would be for the judge to decide (something the appeals officer should have known in any event).

Comment from CPAG

Inevitably, the particular findings of this decision are dependent on its individual facts; however, the judge's comments are a reminder that applications to adjourn for non-attendance before any First-tier Tribunal hearing should be accompanied wherever possible by ample reasons, and that subsequent attempts to get a decision to proceed set-aside will not be successful merely because of the fact of non-attendance.

Summary

In this decision, Judge Ward suggests that, depending on the individual facts, a failure by the Secretary of State to include evidence about a claimant's recent award of disability living allowance (DLA) in the information to the tribunal may lead to an error of law in the form of a breach of the rules of natural justice.

The claimant scored just six points in the work capability assessment and so did not have limited capability for work. The appeal tribunal, in hearing on the papers, upheld that decision. In the course of the claimant's further appeal to the Upper Tribunal, it became evident that at the time of the decision maker's decision, the claimant had recently been awarded DLA, including both the care and the mobility component. This information was not before the First-tier Tribunal.

Judge Ward allowed the further appeal and remitted the case to a new First-tier Tribunal. There was no criticism of the original First-tier Tribunal, which could not know about the award of DLA. But although the Secretary of State submitted that, due to internal arrangements in the Department, the decision maker for the work capability assessment would not have known about it as a matter of course, the judge also held that that did not mean he could not have ascertained it; and that, 'It would seem prudent once an appeal has been received, if not before, for the benefit systems to be interrogated to check for material of this type... ' (paragraph 10). Further, applying authority that evidence in relation to one benefit may be material, if cautiously applied, to another (LO v SSWP [2009] UKUT 208 (MC) and DR v SSWP [2010] UKUT 2010 (MC)), it was possible (depending on the relevance of the evidence) that a failure to supply such evidence could result in a breach of natural justice at the tribunal. Here, the judge adopted the findings of Judge Jacobs about the duties of a local authority in a housing benefit case in SC v LB Islington (HB) [2011] UKUT 490 (AAC) (paragraphs 6 and 7).

Comment from CPAG

The judge in the present case would appear to have considered the Secretary of State's failure to provide evidence about the DLA award an error of law. It is a welcome reminder that claimants in work capability assessment cases may benefit from DLA evidence as well as have it used against them. The findings about the duties of the decision maker are consistent with those regarding the need to submit previous medical reports in ST v SSWP [2012] UKUT 469 (AAC) (Bulletin 232, p14).

Summary

The claimant had vertigo. Having been refused ESA, she appealed. The First-tier Tribunal found that she did have limited capability for work, including on the grounds that if she was found not to there would be a 'substantial risk' to her health or someone else. In deciding this in the context of limited capability for work, the tribunal applied the exceptional circumstance rule, regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008, SI No. 794. However, it decided that she did not also have limited capability for work-related activity - ie, she was not in the support group. In deciding that, it rejected an argument that the 'substantial risk' exceptional circumstance for the support group, at regulation 35(2)(b), also applied.

In refusing the claimant's further appeal, Judge Jacobs held that a claimant who satisfied regulation 29(2)(b) did not therefore automatically satisfy regulation 35(2). Rather, that depended on the nature of the claimant's condition and the work-related activity that she would be expected to undertake. With regard to the latter, however, claimants and tribunals had to be given sufficient information about work-related activity in order to allow the claimant's right of appeal to be effective (paragraph 2).

The provisions about the substantial risk exceptional circumstance used similar wording, but did so for different purposes. Regulation 29 was concerned with the risk of work; regulation 35 was concerned with the risk of work-related activity; and there was no reason why that should be determined by regulation 29 (paragraph 14). However, the Judge went on to say that, 'Despite having dealt with numerous cases involving the support group, I still have no idea of what work-related activities involves beyond the general, formulaic statements such as those I have quoted from the Secretary of State's argument...it must be possible to give a sufficient indication of what is involved in order to allow a claimant to provide evidence and argument, and to allow a tribunal to make a decision... the existence of a statutory right of appeal requires that it must be effective. It cannot be effective without the necessary information for claimants to participate in the appeal and for the tribunal to make a decision' (paragraph 15). In this case, however, there was sufficient information, as whatever work-related activity may involve, it was clear that the claimant should be able to undertake it, as she could travel, had attended an interview and examination for the medical and could go shopping, to the bank and to the post office.

Summary

The claimant was a Dutch national. He was employed in the UK but his employment ended in February 2007. He claimed jobseeker's allowance from 25 May 2007 ie, after a delay of around three months), and received that until 31 August 2008. Having become ill, he claimed IS from September 2008. His claim was refused on the basis that he did not have the right to reside. His appeal was allowed on the basis that he had retained his worker status and was now temporarily incapable of work.

Judge White allowed the Secretary of State's further appeal on the basis that the tribunal had made insufficient enquiry into whether the claimant had retained his worker status, in particular what he did in the period between becoming unemployed in February 2007 and claiming jobseeker's allowance in May 2007. The case was remitted to a new tribunal for findings of fact. The judge also made some more general findings about, 'the issue of delay' (ie, the timeliness within which a claimant must have 'registered as a jobseeker with the relevant employment office'), which is one of the conditions under which worker status can be retained as set out in Article 7(3)(b) of the so-called Citizenship Directive, EC Directive 2004/38/EC. All parties were agreed that 'registering' as a jobseeker was a distinct requirement from that of being in 'duly recorded unemployment', which was another requirement of Article 7(3)(b) (paragraphs 48-49). As far as being in duly recorded unemployment was concerned, that might be achieved simply by that being recorded or confirmed on receipt of a claim; but that did not apply to the separate act of actually registering with an employment office (paragraph 56).

Regarding the permissibility of delay in doing that, the judge concluded that, 'Where there is a delay of more than a very few days between the end of employment and the completion of the formalities required to take the benefit of Article 7(3)(b) of the Citizenship Directive, the proper approach is to ask whether, having regard to all the circumstances of the case, there has been undue delay in meeting the requirements of the Citizenship Directive' (paragraph 69). Whether or not there had been 'undue delay' required a full enquiry into the reasons for the delay. For the judge, 'Decision makers and tribunals are required to exercise a judgement as to whether there are reasonable grounds for the delay such that it is not right to regard it as an undue delay... it follows that the longer the delay, the more compelling must be the reasons for it. I do not specify any outer limit beyond which a delay will necessarily be regarded as an undue delay' (paragraphs 71-72).

Summary

The claimant was the subject of a decision that she had ceased to be entitled to income support on the grounds of alleged cohabitation with someone in full-time employment. She appealed and requested an oral hearing. However due to confusion on her part, she turned up 20 minutes late for the hearing. By that time the tribunal judge, having received information that the claimant could not be contacted, had considered the appeal on the papers alone and refused the appeal. When the claimant was allowed to see the judge, he told her that he had already made the decision and that she was too late.

Judge Rowland allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal judge had erred in not considering whether to set the decision aside when the claimant turned up late and not rehearing the case. On the facts, which included that there was a significant sum of money at stake and that it was clear that the claimant did wish to take part in an oral hearing, the decision should have been set aside and a hearing commenced. 'I cannot believe,' remarked Judge Rowland, 'that the claimant having arrived 20 minutes late made it impossible to hear the case that afternoon so as to require an adjournment and a delay in someone else's case being heard... I suspect that setting aside his decision simply did not occur to the judge but I am satisfied that he erred in law in not rehearing the case, even if that required him first formally to set his first decision aside' (paragraph 15).

Indeed, it was possible that a formal setting aside was not required in this case. Even if the decision notice had actually been written, it seemed unlikely that it had been given or sent to anyone by the time the claimant arrived. In that case, the decision may have been considered not to have been final. The Administrative Appeals Chamber of the Upper Tribunal treated a decision as final only when a written copy of it was sent or given to a party, and it seemed to Judge Rowland that the same approach should be taken in the Social Entitlement Chamber of the First-tier Tribunal - ie, including in a social security appeal (paragraph 11).

Summary

The claimant appealed against the decision refusing him disability living allowance. On the appeal enquiry form, he ticked a box indicating that he did not want an oral hearing. Neither did he indicate that he had a representative, although his council welfare rights service had assisted him with the claim form - it was unaware of his return of the enquiry form, the DWP submission and ultimately of the hearing. The tribunal considered the case on the papers and refused the appeal. Following issue of the tribunal decision, the claimant's representative applied on his behalf for the decision to be set aside, on the grounds that had the welfare rights service been aware that a hearing was being arranged, it would have advised that the claimant request an oral hearing and would have provided a submission. The application was refused on the basis that no ground under rule 37(2) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685 was made out.

Judge Turnbull refused an appeal to the Upper Tribunal against the refusal to set aside. There was no ground made out under rule 37(2). Despite an earlier thought that there may be an argument that a party to the appeal was not present at the hearing, the judge held that 'hearing' in rule 37(2)(c) referred to an oral hearing. Here there was no oral hearing, so no party could be held to be absent (paragraph 14). There was no other error in the refusal to set aside. There was no 'procedural irregularity' (ie, a ground under rule 37(2)(d)), as although the appeal papers were sent to the claimant and not to the welfare rights service, it had not been identified as the representative for the purpose of the appeal. Neither was there any breach of natural justice: it was 'entirely the claimant's fault' that he did not have an oral hearing or seek further help from the welfare rights service; and even if that was due or partly due to the claimant's mental health problem, that still did not mean that there was a breach of natural justice (paragraphs 15-16).

Decision in brief

Claimant's delayed return of form Ml 12 with mortgage information resulted in supersession for change of circumstances - but the change of circumstance was the expiry of the 13-week waiting period, and Secretary of State already aware of that-therefore not a late notification of change - default rule that change takes effect from date it occurred applies, with result that housing costs backdated to end of waiting period

Summary

The claimant had breathing problems, arthritis and the after-effect of a fractured ankle. She scored nil points for mobilising in the work capability assessment. On appeal, the tribunal decided that although she satisfied the work capability assessment via a combination of points for mobilising and continence, she was in the work related activity group and not the support group. Regarding mobilising, the tribunal found that the claimant, with use of a walking stick and walking ‘slowly’, was able to walk ‘for 1–2 minutes on level ground without significant discomfort or exhaustion’ and ‘with pauses’ could do so repeatedly within a reasonable timescale.

Judge Paines allowed the claimant’s further appeal, and remitted the case to a new tribunal, on the basis that the tribunal had not given adequate reasons for its decision regarding mobilising. However, the tribunal had not erred in all respects. It had decided that descriptor (a)(i) of the mobilising activity did not apply. That descriptor applies if the claimant cannot ‘mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion’. Judge Paines held that although the word ‘stopping’ (there and in other mobilising descriptors) was not distinct from ‘pauses’, so that any interruption of mobilising to avoid significant discomfort or exhaustion would suffice, the tribunal correctly understood that. Its reference to ‘pauses’ related rather to (a)(ii), which applies where the claimant cannot ‘repeatedly mobilise more than 50 metres within a reasonable timescale because of significant discomfort or exhaustion’. The tribunal had found that the claimant could walk 50 metres without stopping, and then could repeat that after a ‘pause’. That would amount to repetition ‘within a reasonable timescale’ and the tribunal had not erred here (paragraphs 21–24). Also, on the facts of the case the tribunal had not failed to adjourn to get the papers relating to the claimant’s award of the high rate of the mobility component of disability living allowance. All such adjournments were a matter for the tribunal’s discretion and in this case the tribunal had ‘reasonably ample’ material on the ESA claim, so that the failure to adjourn did not amount to an error of law (paragraphs 30–36).

However, the tribunal had erred in not adequately explaining its translation of the claimant’s walking time (1–2 minutes) into an estimate of walking distance. The judge agreed that the reference to walking ‘slowly’ would reasonably be interpreted as walking at 40–60 metres per minute. But allied to the reference to 1–2 minutes, which translates into a distance range of between 40 metres (assuming a minute’s walking at 40 metres a minute) and 120 metres (assuming two minutes’ walking at 60 metres per minute). That was not adequate to explain the finding that she could walk 50 metres (paragraphs 25–28).

Summary

The claimant had a number of physical health problems. He was considered to have failed the work capability assessment. The First-tier Tribunal dismissed his appeal, although it did award him 6 points in the mobilising descriptor for inability to repeatedly mobilise 200 metres within a reasonable timescale because of significant discomfort or exhaustion. The tribunal took into account doctor’s evidence that he would have problems with ‘repeated use of a wheelchair after propelling himself over 100 yards’, and also found that the claimant ‘walked a significant distance to his examination. He would probably have to stop a number of times due to discomfort’.

Judge Rowland allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in not properly considering points in the mobilising descriptor from problems with ability to mobilise repeatedly. Firstly it should have considered descriptor 1(a)(ii) of the work capability assessment. That applies if the claimant ‘cannot repeatedly mobilise 50 metres with a reasonable timescale because of significant discomfort or exhaustion’. The judge said, ‘it seems to me that “repeatedly” must mean more than two or three times, at least in the context of paragraph 1(a). There will be a few people, of whom this claimant might possibly be one, who can manage over 100 metres in one go (and therefore implicitly in two or more goes) but cannot reasonably be expected to manage a further distance of 50 metres within a reasonable timescale…’ (paragraph 5).

Also, if it was the case that the claimant could not repeatedly propel himself in a wheelchair for more than 100 metres, the question arose as to how far the claimant could walk at a time, given that the tribunal appeared to have considered that he could walk a short distance repeatedly. If he could not walk more than 100 metres in one go, then he could not repeatedly walk that distance either, in which case he should have scored at least 9 points under descriptor 1(c)(ii) (paragraph 7).

Regarding the continence descriptors, the judge endorsed the finding about being ‘at risk’ of loss of control made by Judge Lane in NH v SSWP (ESA) [2011] UKUT 82 (AAC), that a risk may exist notwithstanding that there are few, or no, occasions when it materialises (paragraph 12).

Thanks to Sanatkumar Dave of Tameside Metropolitan Borough Council, the claimant’s representative, for sending us this decision.

Summary

The claimant suffered from fibromyalgia, lower back and hip problems and anxiety and depression. Having originally been awarded ESA, she was reassessed which included her completing a new ESA50 questionnaire and attending a medical examination, which was carried out by a registered nurse. The claimant was considered to have failed the work capability assessment, a decision that was upheld by the First-tier Tribunal.

Judge Williams allowed the claimant’s further appeal and substituted a decision to the effect that the claimant remained entitled to ESA as she passed the work capability assessment. The tribunal had erred in making no finding about the claimant’s depression and other mental health problems, and dealing only cursorily with some of the relevant physical health descriptors, and relying on the official ESA85 medical report which provided ‘no relevant evidence of any weight’ while ignoring other independent expert evidence (paragraphs 13-16).

The official ESA85 medical report was so flawed as to be of no evidential value. Firstly, the nurse appeared ‘to have failed to conduct any clinical examination of evidential value’, failing to note the anxiety and depression as medical conditions, and with no sign elsewhere in the report ‘of any positive input by the nurse’ to the clinical examination part of the report. The computer program had carried forward into that phrase from the ‘description of a typical day’, apparently without correction or editorial consideration. Regarding physical descriptors, the nurse had recorded that the claimant was in pain and discomfort and so was not subject to the usual physical examination; but the nurse had nevertheless assessed the claimant as having no limitations. ‘Why’, asked Judge Williams, ‘did the nurse assess what she said she was not assessing?’ (paragraphs 5–8). Overall, for the judge, ‘this report not only calls into question whether the nurse actually conducted a mental health examination as reported or even read the report she submitted before doing so but also more generally the evidential value of a report conducted or purportedly conducted by a nurse when there is no indication that the nurse had any specific qualifications to conduct that aspect of the examination… it also calls into question the validity of a report produced by a computer programme that allows the operator to delete the whole of the relevant parts of the report which should record results of a clinical physical examination so that there is no “supporting medical evidence” whilst still generating unqualified opinions about unexamined physical functions for which there is no such evidence’ (paragraph 10).

Summary

The claimant appealed against the decision of the First-tier Tribunal about whether she satisfied the work capability assessment. She was assisted at the tribunal and in her further appeal by a representative. In applying for permission for further appeal, the representative said that he had wished to give evidence at the tribunal on behalf of the claimant about the matters with which his organisation had felt it necessary to assist her, but had been told by the judge that he could only ask his client questions or make a submission.

Allowing the claimant's further appeal and remitting the case to a new tribunal, Judge Gray commented on that, although she decided the case on another matter and did not have the benefit of argument on it (paragraph 3). The judge said that the tribunal would have been entitled to hear the representative's evidence as 'there is nothing to prevent a representative from giving factual evidence of matters within their knowledge'. It was of course a matter for the tribunal to assess the weight of such evidence, in the way that it weighs any evidence (paragraph 6).

In so commenting, the judge endorsed the decision of Commissioner (as he then was) Jacobs in CDLA/2462/2003.