Vulnerable tribunals?

Introduction

In RT v SSWP (PIP) [2019] UKUT 207 (AAC) (1 July 2019), Upper Tribunal judge Poynter considers the case of an appellant who had a diagnosis of autistic spectrum disorder and who argued (through a representative) that he had been unfairly treated by the First-tier Tribunal with unreasonably robust questioning. Judge Poynter had reference to relevant law in the Practice Direction First Tier and Upper Tribunal – child, vulnerable adult and sensitive witnesses (the ‘PD’).

The PD defines ‘child’, ‘vulnerable adult’ and ‘sensitive witness’. The PD goes on at paragraph 6 to say that where such a person does attend a hearing, the First-tier Tribunal ‘must consider how to facilitate [her/his] giving of evidence’. Paragraph 7 gives examples of what may be appropriate – allowing evidence to be given by telephone or directing that a person be appointed to facilitate the giving of the evidence.

RT v SSWP (PIP)

In RT v SSWP (PIP), Judge Poynter considers whether the failure of the tribunal to show it considered the PD constituted a material error of law.

He decides the following.

• That the definition of ‘vulnerable adult’ in paragraph 1(b) of the PD remains that set out in section 59 of the Safeguarding Vulnerable Groups Act 2006 as worded on 30 October 2008. Thatsectionwasrevokedandreplaced by the Protection of Freedoms Act 2012, but the PD is not to be read as if the reference to vulnerable adult was now a reference to the new definition. The various provisions of the Interpretation Act 1978 which might allow that did not apply. The decision provides a useful explanation of how, in cases where a legislative provision referred to in another piece of legislation has been repealed and re-enacted, one should determine whether the reference in the second piece of legislation should now be read as referring to the original version or the re-enacted version.
• The consequence of that is that almost all claimants will be vulnerable adults as the definition in the Safeguarding Vulnerable Groups Act was so wide (anyone receiving regular prescriptions, for example).
• Failure to apply a PD is an error of law following AM (Afghanistan) v Secretary of State for the Home Department and Lord Chancellor [2017] EWCA Civ 1123.
• However, whether such an error of law is material will depend on the specific facts of the case. For example, although most people with physical disabilities are vulnerable adults, they do not need special measures to allow them to participate in a hearing. Similarly, many people with mental health problems that are mild or moderate can also answer questions, even difficult or probing ones.
• That said, an autistic adult clearly needs the PD to at least be considered and so in the case before him the error is material: the First-tier Tribunal had either not considered the direction or had not shown in its statement of reasons that it had done so.

Judge Poynter ends his decision with a call for the PD to be updated to use a more focused definition of vulnerable adult.

Implications for advice

Pre-appeal

As Judge Poynter points out, competent appellant representatives should state as early as possible in an appeal what special measures might be needed and why. That comes from their duty to assist the tribunal in applying the ‘overriding objective’ (at rule 2(3) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685) that cases be dealt with ‘fairly and justly’. It will not further that objective (which includes dealing with cases without delay so far as possible) if a First-tier Tribunal has to adjourn as it only learns of special needs on the day of the hearing.

Advisers need to think carefully about how their client’s health problems may affect their ability to give evidence (paragraph 125 of MM and DM v SSWP [2013] UKUT 259 (AAC) – referred to below – provides some pointers as to the sort of difficulties people with a mental health problem may face, albeit in the context of the work capability assessment process rather than at a First-tier Tribunal). Once the specific problems are identified, advisers need to think about how the First-tier Tribunal could alter its usual procedure to facilitate the giving of that person’s evidence (that could include things such as a telephone hearing – on which see JM v SSWP (PIP) [2018] UKUT 108 (AAC), allowing a carer to also give evidence or support the claimant in answering by explaining questions, having a break during the hearing, trying to avoid repeated questions but instead explaining the answer given wasn’t sufficient and asking a follow-up question, etc.). Advisers will then be in a position to write to the First-tier Tribunal in advance explaining the issue and what is needed by way of modified procedures (that can be done as a request for directions under rule 6, askingthe First- tier Tribunal to decide the form of the hearing under rule 5(3)(g)). It is likely that some requests for modification (for example, a telephone hear- ing) can be dealt with by the First-tier Tribunal which considers the directions request. However, it may think that other modifications (for example, the format of how questions are to be asked) are best left to be decided by the First- tier Tribunal dealing with the case at hearing.

Post-appeal

Almost every employment and support allowance, disability living allowance or person- al independence payment claimant with an appeal will count as a ‘vulnerable adult’. It should be noted that in RT v SSWP (PIP) Judge Poynter holds that in many cases normal tribunal procedures will mean that, the PD notwithstanding, there is no material error of law. But, where a First-tier Tribunal has, in giving its reasons for an unsuccessful appeal, failed to explicitly state how it has considered the PD, then if an adviser can show that, had it done so, that was capable of having made a difference to the fairness of the proceedings, a material error of law will be established.

To show that the failure to consider the PD (or failure to record how or if it considered it) is a material error, advisers will need to be able to point to some evidence which shows that, had the First-tier Tribunal considered the PD, it is at least possible that it would have altered the way in which the hearing was conducted.

With regard to doing that then MM and DM at paragraph 125 contains a useful summary of particular difficulties which people with mental health problems often face relevant to the work capability assessment and which the three-judge panel in that case held had been established by the interveners in that case. That list will plainly not all apply to an individual claimant. However, if an adviser can show from the evidence that some of those factors applied in a particular case (for example, that the claimant’s mental health problems meant s/he understated her/his conditions, or had poor insight into her/his condition) then this may help to show that, under the PD, a different approach was called for from the tribunal.