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Post by nickd on Mar 18, 2012 19:34:42 GMT 1
The Ministry of Justice has issued what can best be described as a 'diy' guide to appealing for Employment & Support Allowance.Note: The MOJ video has been pulled but scroll down as we have captured it on Youtube for now. Watch it and then read what really happens from the perspective of a welfare benefit specialist.(1) A misleading omission in the video is that before reaching the stage where you would complete the Tribunal's Service 'pre-appeal enquiry' form (called a TAS 1 form) you actually need to have lodged your appeal. It does not make it clear that this should be done first. It's best done on the DWP's appropriate form, otherwise known as a GL24 form. If you don't lodge your appeal; - it doesn't even reach the Tribunal. People watching this video will not necessarily know what stage they are at. They may have received the DWP's decision letter and be mislead into thinking they have to wait for the form mentioned in the video, the right action they need to take is to lodge an appeal or ask for a reconsideration. It's all explained in the GL24 booklet which includes the appeal form. In Gareth's case it would be important for him to have mentioned both his physical & mental health problems when completing his Employment & Support Allowance (ESA 50) questionnaire and his appeal form; - in some cases the Tribunal would rule out considering Gareth's mental health problems unless they were an issue raised either before or when he lodged his appeal. This is where a lot of these appeals go wrong (you will see what I mean when you look at the second video at the end of this article) (2) The Ministry of Justice show you a relatively informal room where your appeal is likely to be heard. The reality is that since the merger of the Courts & Tribunals Service, a person bringing an appeal for benefits is quite likely to face the formality of a courtroom. I know this from my own experience and have even challenged it in an Upper Tribunal. It was held that a courtroom is not too formal, the Upper Tribunal took the view that the Court & Tribunal merger would mean Tribunals would have to use the accommodation available at court venues. It means the person bringing the appeal could find themselves some way from and looking up to the Tribunal panel members who sit on an empanelled raised plinth. The Royal Crest hangs above their heads and my clients tell me they feel intimidated by the courtroom environment; - some even tell me it makes them feel like a criminal. It won't necessarily be like the Magistrates' court shown above, but it will be fairly similar if your hearing is held in a court complex. Our local county court uses its main courtroom for county court proceedings, as a Magistrates, it has the jurisdiction to hear a high court case and it hears benefit appeals on a regular basis. Not all Tribunal venues are the same, but those who face a hearing at a court venue should be warned what to expect. Misleading them could lead to a situation where they are shocked when they arrive at their hearing to hear it is being conducted in court. In most cases the Tribunal will do all it can to put you at your ease; - but it's not always as 'user - friendly' as the video portrays. This is why we feel strongly that clients should be helped through the process. (3) The Ministry of Justice video tells you that the doctor will be just like your own general practitioner. Well no they won't be like your doctor at all. For one they won't medically examine you and nor will they have access to your medical notes either. Indeed, in most cases the DWP does not routinely supply the Tribunal with copies of the medical certificates a claimant sends to the DWP; - I usually have to make an application for the DWP to produce all the evidence and in some cases it will be necessary to get this in the form of a 'letter of instruction' from the client's doctor. In some cases the client cannot afford the cost of a medical report from their own doctor so an application has to be made to the Tribunal for it to use its powers to obtain medical evidence. It's misleading for the Ministry of Justice to say the doctor on the panel is like your own doctor; - some could take this to mean that if the claimant is found fit for work then they can disregard the word of their own doctor who may have a different view of the opinion of the Tribunal doctor. Patient's should never be put in a position where their relationship with their doctor is put into question. The Ministry of Justice should not be telling claimant's that the medical panel member is like their own doctor; - both have very different functions. That's not to say that some Tribunal doctors are not very good at listening to what a claimant has to say. (4) The Ministry of Justice didn't say much about the importance of evidence. The Ministry of Justice are very much underplaying the importance of the use of 'evidence' in an appeal. The Ministry of Justice pays the Tribunal judge a judicial salary because of the complexity which surrounds social security law. The DWP will prepare the case by writing a submission of evidence, typically around 50 - 60 pages. This will include copies of relevant law, the decisions, claims forms, the claimant's appeal and details of the medical report carried out by the private firm ATOS; - it's often the medical evidence which is most controversial. Decision - maker's departments are awash with appeal papers, the Tribunal centres are overladen with case papers and in our offices we have filing cabinets full of appeal papers for the clients we represent. In more complicated cases the papers can amount to hundreds and hundreds of pages. In our legal aid specialist welfare benefit office, we would never send a client to a Tribunal unless we had explained everything to them and fully prepared a submission in response to the DWP's appeal papers. We look at everything and sometimes have to challenge the DWP in the way they have brought the case; - it can involve hours of work and special applications which a client just will not generally understand unless they really know what they are doing. Some appeals can involve the Tribunal in issuing 'directions' and adjourning the case, it is always best for the claimant to seek advice as appeals can be a lot more complicated than the above video would have you believe. For instance, in some cases the doctor will answer questions as they are asked in the claimant's benefit forms, this can be misleading as they are not the same questions which the Tribunal is obliged to follow according to the law relating to Employment & Support Allowance (see below mentioned 'case law'. In some cases, even though we are not funded to do so, we will represent our client at the appeal in person. We stand by our results;- we win around 70% + on Employment & Support Allowance appeal cases. (5) The Ministry of Justice scores an own goal with the presence of Imogen, the person who helped Gareth with his Employment & Support Allowance appeal. In the video neither the Tribunal Judge or the doctor asked Gareth about any mental health problems. It was only when they spoke to Imogen that she told them all about his depression; - what if she had not been there? It is important to make sure full details of Gareth's physical and mental health problems are noted, this can take some time as people like Gareth understandably find it hard to tell others about the problems they have. We use our professional skills & experience to get a full history from our client; - the Tribunal often tells us how helpful it is to get the full picture before they are due to hear the case - it helps them reach the right decision quickly and without putting the client through the trauma of answering a lot of potentially irrelevant questions. The Tribunal is meant to look through all the evidence before and during the hearing; - in the video there was none of the usual referring to the evidence which normally happens in an appeal hearing; - Gareth didn't seem to have any of the DWP's usual appeal papers at all. In Gareth's case the mention of his depression would be quite critical to whether or not he would be awarded enough points when added to his physical problems to qualify for the allowance. If the Tribunal agrees with our argument, they can help Gareth by getting him the support he needs to help him back to work. Employment & Support Allowance is meant to be about getting people an allowance for the support they need to improve their chances of getting back into employment. The right result is a correct assessment; - it's what we always aim for and what we do best as specialists. The Ministry of Justice just doesn't seem to get the vital role we play. We see many clients like Gareth, some of them have worse or different conditions and don't have friends like Imogen to help them; - these people need someone on their side. It's very difficult for a claimant to be able to tell the Tribunal how they are affected on a day to day basis, some may experience problems on a very variable basis and it is quite often the case that a claimant speaks to a Tribunal in a very positive light because that is how they want to be; - the reality is that sometimes the full picture is not provided unless the claimant gets help with 'stating their case'. (6) Having watched the video at the top of this page, now take a look at this one.Unlike the Ministry of Justice video, Hester is a real person rather than an actor. Hester couldn't deal with her own appeal and nor could her mother (a fully qualified social worker). The Tribunals Service referred Hester to see us and shortly afterwards she won her appeal (she had to attend an adjourned Tribunal before seeing us). Hester had been waiting for nearly a year to get the support she needed and now the DWP are re-assessing her all over again, we are now helping again and have pointed out to the DWP that we have already been through an appeal. We fully prepared Hester for her appeal and the Tribunal quickly decided her case in her favour. The ATOS doctor who saw Hester said she would have no limitation in her ability to undertake any form of work. Hester went to see her MP who like the Tribunal advised her to let us handle her appeal.
In March of last year, I spoke with the legal aid minister Jonathon Djanogly and invited him to come and visit our specialist welfare benefit office in Devon; - he's yet to take me up on my invitation, it's a shame really as I would happily show him a good few examples of the specialist appeal work we do for people like Hester.
The Ministry of Justice really need to think about again about this video and portraying these appeals in such a simplistic light. The cost of mistakes in the first tier tribunal Gareth attended are highly likely to lead to more Upper Tribunal judgements (see below) purely and simply because the Ministry of Justice is encouraging people to try and deal with an appeal without proper professional help. Even in the case below the Tribunal made an error of law despite the claimant being represented, the representative then took the case to a higher level where it was overturned. Claimants on their own will be blissfully unaware of the errors being made.
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Post by swlabr on Jul 1, 2012 11:12:45 GMT 1
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Post by nickd on Jul 1, 2012 12:40:42 GMT 1
Hi Swlabr & welcome to Mylegal My reply to the above blog on this Video: "I also wrote what I view as constructive thoughts on this MOJ promoted video back in March of this year. Personally as a full time welfare benefit specialist of many years experience I strongly disagree with the video and dislike the way it portrays tribunals as universally 'user - friendly'. I expressed my concerns over the original version (there may have been some changes to it since): mylegal.proboards.com/index.cgi?action=display&board=frontline&thread=609&page=1#1421The claimants who attend these Tribunals are by virtue of their conditions often vulnerable and can all too easily be hoodwinked in to thinking that they can attend these tribunals with a friend and sit down to a listening panel who is going to do all they can to listen to their problems; the reality is that Tribunals are an alien, sometimes hostile, environment where claimants do not always receive what they are entitled to, it's called justice. If the Ministry of Justice was remotely concerned or serious in its desire to help appellants through this judicial process (bound by procedural rules and charged with considering complex social security regulations) it would scrap this misleading video and fund the continuance of proper specialist legal aid in the social security first tier tribunal at a fixed fee cost of £150 paid to organisations who stand to see this vital funding withdrawn with effect from April 2013. Instead it allows the Secretary of State to carry on as a serial litigant and to rack up appeal costs of around £500 per hearing (the real costs are set out out on the mylegal forum)with total disregard to how in excess of 40% of ESA claimants are winning their cases upon appeal. With specialist help the success rates are around 80% as born out by our well researched statistics. In my view, and I accept everyone is entitled to their own, this video is not one which should be promoted. How about having one of a real hearing instead, in fact why doesn't Ken Clarke or his junior Jonathon Djanogly come along too?" NickD Mylegal.proboards.comHas it been withdrawn again by the way?
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Post by swlabr on Jul 1, 2012 15:01:36 GMT 1
Yup, that's why peeps are mirroring it. No doubt Grayling will claim he's withdrawing it from the kindness of his heart because it's not as helpful as it might appear to be.
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Post by nickd on Jul 1, 2012 18:28:09 GMT 1
It's laughable, Conv between DWP & MOJ "let's have a video, oh let's not have a video, oh go on let's have them all thinking it's soooo easy with our lovely user - friendly Tribunal video, oooooh dear it seems people are actually looking at it, hang on they're bleeding well laughing at it, not half as much as we were though eh chaps, hang fire just had a text from Chris G; I'll read it out.... Hi MOJ, plse pull plug on ESA vid, eone knows its kinda crap. Neva mind we'll come up with somat equally stupid in time. Gotta get back to mee pos+ spin on workP. Any joy on those dodgy figs yet guys?? Chris G LOL "The executive decision.... What a joke they are!
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Post by nickd on Jul 4, 2012 22:37:40 GMT 1
All is well...The MOJ & DWP will be delighted to know we have resurrected their 'missing' video.
Do enjoy...Actually, upon it's resurrection (courtesy of the ilegal servers - well done Patrick!) I've decided to torture myself and watch this painful pretence of a 'helpful' video once again. My overwhelming conclusion is much as it was back in March; it's dreadful - yes truly awful and nothing like the real tribunals I've been to of late. I'm not having a pop at the DWP or the MOJ for trying to help people, but I doubt this was a genuine intention to assist benefit claimants facing the rigours of an ESA appeal. In all honesty I give this one a grand score of 2 out 10 in terms of its accurate portrayal of the real thing. Having looked at it again, my earlier thoughts remain the same; indeed I would like to go a little bit further in enlarging upon my concerns: Formality of the proceedingsTribunals are not always held in an environment such as the one shown in the video. Of the three venues which I attend one is the main court room of the local county court at Torquay which looks just as formal as the picture of the courtroom shown in the first post of this article. The venue at Exeter is less formal but still very much a Tribunal centre, it used to be the employment tribunals centre so it is laid out with the judge sitting on a raised plinth some way from where the claimant sits. The Plymouth venue is probably the least formal but again it is very much a tribunal centre with a main hearing room which is much larger than the room shown in the video; there is a large table so the judge & panel members sit some distance from the claimant; but at least is on the same level. Plymouth is a far less formal than the one at Torquay. I was granted leave to appeal on the issue over a tribunal sitting in a courtroom in an application made to the Upper Tribunal. My argument was that it was in breach of the Tribunal's procedural rules and contrary to the overriding objectives of the Tribunal to have conducted a hearing without 'avoiding unnecessary formality and seeking flexibility in the proceedings'. Judge Jacobs at an oral hearing in London listened carefully to my argument but rejected it because he considered it was the way in which the hearing was conducted rather than the environment in which it was heard which dictated the degree of formality. It's not a judgment I entirely agree with but none the less I gave it my all and am satisfied it had a fair hearing. However, I'm mindful that only this week three professional witnesses who attended the same venue on behalf of one of my clients all told me that the very same Court room wasn't the right place to hear benefit appeal cases; I agree with them rather than the very learned Judge Jacobs. The Tribunal's inquisitorial approachUnfortunately not all Tribunals are as willing to listen to the claimant as the one shown in the video. On the whole I would say that the Tribunal gets it about right in the majority of the cases we bring before them. Whilst I have a lot of respect for the majority of the staff and judiciary who hear these Tribunals there remains a need to be realistic. Judges and panel members are human beings and as such their attitudes vary enormously. I have encountered and heard accounts from my clients of Tribunals which are to be blunt reported to me as very 'hostile'. There are some members who do not always hear and weigh the evidence as objectively as they should, you get the impression that they make up their mind with little regard to the evidence before them. In essence what I am saying is that it would be wrong to pretend all Tribunals are fair. It is probably a bold statement to make when so much of my work is connected with appeals before our Tribunals but I do not think it right to allow everyone facing an ESA appeal to think they are completely 'safe' in the Tribunal's hands. My fear is this approach could lull claimants into a false sense of security and could end up in a state of shock when they attend their hearing. In a culture where so much emphasis is being placed on the morality of the benefit culture it invariably rubs off on some Tribunals who end up adopting their own morals, it shouldn't happen but the reality is that it does. It's all the more reason why clients need someone on their side when so many people stand in judgement against them, it is right that it should be someone with a proper working knowledge of the tribunal and the complexity of social security benefit legislation. What chance do claimants stand if Tribunals join in with their own spin on which set of morals should apply? The Tribunal can be quite gruelling in the way they cross examine a claimant upon their evidence, clients tell me they feel as though they've been put on trial. The August 2011 rioters would invariably have had access to a lawyer when dragged before the courts, why is that we do not extend the same degree of assistance to someone facing the most controversial of benefits? People like Gareth cannot contest the mammoth Secretary of State on their own without adequate help, a self help video is no where near enough. These people are fighting preposterous attacks upon their credibility, they are not just in it for the money; they are in it for what the State owes them - it's called support. The hearing has a judicial function The video deflects almost entirely from the very purpose of determining a case in the first - tier tribunal, let's not forget these cases are legal hearings. They are not just about making simple findings of facts. Of course the video is limited in what it can show you but it makes little attempt to portray how the law has to be considered in order to arrive at a correct and legally binding determination over a claimant's entitlement to benefit. A common failing is for a Tribunal to duplicate questions based upon those which the claimant completed when answering their ESAU 50 self assessment questionnaire. I have found myself reminding Tribunals that they must consider the 'statutory test' contained within the ESA Regulations as laid out in what is known as schedule two. I draw to their attention an Upper Tribunal judgement made by Judge Williams; here's the link to the judgement in case CE 2373 2009 of the Administrative Appeals Chamber. It's important because the statutory definitions of each 'descriptor' (which relate to the questions answered by the claimant) are different to those asked in the ESA 50 form and in the ESA 85 medical report completed by the health-care professional. It's vitally important because the Tribunal should end up 'scoring' a claimant against the regulations rather than the questions in the ESA 50. If a Tribunal makes this mistake they do so in error of law, it would form grounds of appeal to an Upper Tribunal. I remind them of this in what I term the 'issues raised by the appeal' section in our appeal submission which we provide to the Tribunal. If they disregard it and my client loses their cases I would be looking to make an application for leave to appeal to an upper Tribunal by default. By far the biggest error (in my opinion) which this Tribunal made was in their hearing of Gareth's evidence. As pointed out when I first wrote about this video (see above) you have to ask yourself what would have happened if the appellant's friend Imogen had not attended the hearing, would Gareth have said anything about his mental health problems? I strongly suspect, if he is anything like the majority of clients I see, he would not. The Tribunal should not have placed a reliance on Imogen when it came to 'filling in the gaps'. What they should have done in their inquisitorial approach is to have have asked Gareth when they were speaking to him. There are many claimants in Gareth's position who would not mention a mental health condition, the Tribunal should at least have attempted to probe Gareth before turning to Imogen. It's useful to have a supportive friend in attending the hearing but the Tribunal should never be reliant on them in the way portrayed in this video. If this Tribunal had not found the case in Gareth's favour and Imogen had not attended, their judgment would almost certainly be one which could be overturned in the Upper Tribunal by citing another Upper Tribunal judgement in the case of CE/191/2010 which is a judgment by Judge Parker having a relevance to the adequacy of its reasons and application of mental health descriptors. What they don't tell you is how Gareth's appeal went, if you look at the decision notice carefully it doesn't say whether the appeal was allowed or not. On the simplistic basis of questions asked the Tribunal wouldn't have been able to come to any decision. It would have needed to probe exactly how Gareth had difficulties in specific descriptors from the physical & mental range of the assessment. This would usually entail quite intensive questioning, citing examples, ascertaining frequency and establishing the degree of limitation. These appeals can last around an hour, sometimes less and sometimes more. In the course of preparing any client for the rigours of an ESA appeal we would routinely, alongside preparing a detailed appeal submission, prepare them by asking them questions in a way which would not be dissimilar to how they are questioned by the Tribunal. This can never be an exercise where we 'put words in claimant's mouth'; it is one which helps us (a) ensure the client is adequately prepared (b) draws out any otherwise unmentioned problems from the client and (c) can help us in drawing to a clients attention where their case is unlikely to succeed. It is particularly helpful in mental health cases like Gareth's, but has to be conducted with a great deal of caution. It is not at all uncommon to have the client's support worker or community psychiatric nurse present. Its usefulness is in extracting as much information as possible to identify precisely where their entitlement is according to law. Our regional Tribunal user's group always tells us that one of the most helpful aspects of our work is in preparing an appeal submission which clearly sets out which physical and or mental health descriptors can be applied to the client, it needs to be reasoned with regards to lawful entitlement. In some cases a client may not meet any of the descriptors contained within the 'Limited Capability For Work Assessment' but still qualify under the provisions of the exceptional circumstance regulations, this is commonly overlooked by decision - makers and Tribunals. There are many amendments to all of the current legislation and it within the role of the Tribunal to ensure the correct version is being applied; these should all be dealt with as issues raised by the appeal; nobody in the video asked Gareth if he had sought legal advice or clarified whether he was satisfied that he did not want to check any of the evidence & legislation with a benefits advisor. Gareth would have received a submission from the Secretary of State which would typically have been around 64 pages. It is unlikely he would, given his mental state, comprehend the issues raised in all of the evidence sent to him. Imogen suggested that it would have been unlikely Gareth would have attended without her help. There is specific case law on whether a Tribunal should consider an adjournment in certain cases where the claimant indicates they have requested an oral hearing but then do not attend on the days. The case law is familiar to me as it is a case which we brought in the Upper Tribunal, it went on to result in a successful award. On a final point the Tribunal clerk did not correctly clarify whether Imogen was attending as a witness or merely as a supportive friend. The role of the medical panel memberTo suggest the medical member of the Tribunal is just like the claimant's own doctor is grossly misleading, they are nothing like your doctor, It is inherently dangerous to suggest any such similarity. This could potentially lead to very serious situations arising particularly in mental health cases. Lets say we have a claimant who suffers from a bi-polar disorder who at the time of his or her appeal is complying with their medication which is having a stabilising effect upon them. None the less the claimant's own doctor has opined that their patient is unfit for any work. Assume that the Tribunal disagrees and makes the decision that the claimant has no limitation for work and is therefore not entitled to Employment & Support Allowance. This could potentially create a disastrous mistrust between the claimant and his own doctor. As a result he or she may trust more in the medical panel member and say 'I've been told I'm okay, that means I need not take my medication'. The bond of trust between the claimant and his own doctor has been broken, he or she may have it in their mind that this video was the one which told them 'the panel member is just like my own doctor'. The potential consequences of creating mistrust between a patient and his or her own doctor hardly needs spelling out does it? This video does not accurately portray what claimants should expect when attending their Employment & Support Allowance appeals. It does nothing to promote a need to seek proper help with an appeal which could potentially have disastrous consequences upon the person appealing. A national average of 40% of Employment & Support Allowance appeals are successful; with specialist help the success rates soars to 80%. It's not about bending the rules to suit the claimant, it is all about making sure the Secretary of State gets it right. It is no mere coincidence that legal aid funding for welfare benefit appeals is being withdrawn next April just as government introduces a whole new raft of hard hitting benefits.
Government cruelly labels via its media campaigns claimants as 'fakers, cheats, liars and scroungers'. An Employment & Support Allowance appeal Tribunal allows a claimant to show how their claim is entirely genuine. What government doesn't like is providing people in need with the support which Employment & Support Allowance should provide. Government is deliberately withdrawing specialist help from advice agencies which are at breaking point because it knows that time and time we get the results that prove them wrong. These appeals are far more complex in law than government wants you to believe that's why we want our clients to continue to get proper help with these appeals. The Ministry of Justice 'self help' video is not the right way of ensuring claimants get the help they deserve.
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Post by nickd on Jul 7, 2012 21:30:29 GMT 1
Here's an example of an Upper Tribunal judgement (by no means overly complex) which found that the lower tribunal had incorrectly made their decision. We will see many more of these judgements if claimants are not adequately represented at their hearings; - this is because we try and stop the errors being made in the first tier tribunal.
THE UPPER TRIBUNAL Appeal No. CE 2373 2009 ADMINISTRATIVE APPEALS CHAMBER
JE v SSWP (ESA)
DECISION
The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. I refer the appeal to a new tribunal to decide the appeal again in accordance with the following directions.
Directions for new hearing
A The new hearing will be at an oral hearing.
B The new tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.
C The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal.
D If the appellant has any further written evidence to put before the tribunal, this should be sent to the tribunal within one month of the issue of this decision.
These directions are subject to any later direction by a tribunal judge.
REASONS FOR DECISION
1 The claimant and appellant (E) is appealing against a decision of the Manchester social entitlement tribunal on 29 06 2009 under reference 946 09 01145. The tribunal confirmed a decision made for the Secretary of State for Work and Pensions that E no longer met the threshold for limited capability for work.
2 E had become incapable of work due to depression. She was sent the standard ESA50 to assess her limited capability for work. In this her adviser indicated some physical limitations and a number of mental, cognitive, and intellectual limitations. She was examined by an approved doctor. Based on the report in the standard form ESA85, a decision maker accepted some limitations in sitting and standing, but no mental health or similar limitations. E appealed because “you failed to take into consideration my mental health problem, in particular my anxiety attacks and depression.”
3 In response, the advisor arranged for E to be given a Mini Mental State Examination at her local medical practice. Her score in that, together with a note about her medical conditions, was submitted in evidence.
4 The tribunal held a hearing of the appeal. E’s representative at the hearing conceded that no physical descriptors were in issue other than the accepted limitation with sitting and standing (for which 6 points had been scored). The tribunal was asked specifically to consider the mental health and associated descriptors 17, 18 and 19. These are coping with change, going out, and coping with social situations. The tribunal, properly, considered each in turn. It found no limitations with coping with change or with coping with social situations, but accepted limitations on going out, for which it scored a further 6 points.
5 The grounds of appeal to the Upper Tribunal raise issues specifically about descriptor 19, coping with social situations.
6 The terms of the descriptor, in Schedule 2 to the Employment and Support Allowance Regulations 2008, are (with the relevant scores):
“19 Coping with social situations
(a) normal activities, for example, visiting new places or engaging in social contact, are precluded because of overwhelming fear or anxiety (15)
(b) normal activities, for example, visiting new places or engaging in social contact, are precluded for the majority of the time because of overwhelming fear or anxiety (9)
(c) normal activities, for example, visiting new places or engaging in social contact, are frequently precluded because of overwhelming fear or anxiety (6)
(d) none of the above apply (0).”
7 The question in the ESA50 puts it in a different way:
“19 Coping with social situations
Please tick this box if you have no problems mixing with other people [ ]
Does the thought of meeting new people or going to new places make you anxious or scared? [ ] Often [ ] Sometimes [ ] Not very often [ ] I never go out”
There is then the standard space for comment. E’s advisor stated; “It makes me scared because my self esteem is very low and I am not confident talking with other people. The “often” box was ticked.
8 The standard ESA85 deals with it in a different way again. It is listed under “adapting to change – activity outcomes”. The form lists “prominent features of functional ability relevant to daily living” and “relevant features of clinical examination.” Various descriptors were brought forward from Box 4 of the form (“description of functional ability”). The bringing forward seems to be selective. For example, the following were brought forward:
“came to the examination centre alone” (from social history)
“able to speak to relatives and friends over the telephone” (from typical day)
“once a week goes to the shop” – ASDA superstore” (from typical day, but the following four phrases, all relevant to that statement, are not copied forward)
The following were not brought forward:
“the following mental symptoms occur every day and are usually troublesome: difficulty sleeping, tearfulness and anxiety” (from conditions history)
“its very rare that she goes out” (from typical day)
“Gets impatient in the queues” (one of the four follow-on phrases noted above)
“has difficulty frequently receiving visits from her grand children due to their unpredictable behaviour and irritability” (from typical day)
Under “abnormal behaviour” it was noted that E had some difficulty coping at interview. This echoed the comment elsewhere in the form that she “needed prompting at interview”.
9 The tribunal had the benefit of oral evidence from E and a friend. The friend said “She will not come out. She doesn’t socialise any more.” The only other evidence was that of the general practitioner. E told the tribunal that she was worried by the thought of attending the tribunal as she never went anywhere new and “today was the first one …”.
10 In considering this descriptor at [7] in its decision the tribunal noted E’s own evidence (including evidence of the effect of a mugging shortly after she made her claim) and the GP’s and other medical evidence. It noted that “none of the medical evidence suggests the appellant is subject to overwhelming fear or anxiety and there was no suggestion of such by the appellant herself.” It concluded that E’s condition “fell well short of the criteria necessary for this descriptor.”
11 The representative’s grounds of appeal were about this descriptor alone. She pointed out that her note of the hearing was that E had said she was terrified, not worried, about attending the tribunal. She noted that E had commented that new places frighten her. She also questioned whether evidence of mild to moderate depression and anxiety was inconsistent with overwhelming fear or anxiety at going out”.
12 On considering the application, I raised a number of issues about this descriptor, which is a new descriptor for employment and support allowance. I also noted differences between (a) the questions on the ESA50, (b) the questions on the ESA85, and (c) the official terms of the descriptor. I invited the Secretary of State to comment on what was meant by “normal activities”? Was this subjective to the claimant, or objective to be judged by a “normal” person of similar age and circumstances? I expressed the provisional view that, in light both of the evidence and of the express focus of the appeal on this and a few other descriptors, and bearing in mind that the tribunal recorded 12 points elsewhere in its assessment of E, it had dealt with this inadequately.
13 The Secretary of State agreed that the decision of the tribunal was inadequate on this issue. The submission drew attention to DWP medical services policy, although no published source was quoted for this, nor was it given by an identified officer. But I quote the view of the Secretary of State about issues I raised in requesting a submission:
“The activity “coping with social situations” is intended to reflect lack of self- confidence in social situations that is greater in its nature and its functional effects than mere shyness or reticence. It reflects levels of anxiety that are much more severe than fleeting moments of anxiety such as any person might experience from time to time.
The terminology “overwhelming” is indicative that the level of anxiety referred to suggests a specific and overpowering experience of fear, resulting in physical symptoms or a racing pulse, and often in feelings of impending death such as may occur in a panic attack.
This activity relates normal activities which may include visiting new place or (bold in original) engaging in social contact. These are activities that would feature in the activities of daily living “normal” individuals. A reference to social situations considers activities such as:
Use of public transport Shopping Talking to neighbours Use of phone Hobbies and interests Social interaction with family” 14 As this is a supported appeal, I do no more than set out the views of the Secretary of State. The Secretary of State’s representative drew from these views the submission that the tribunal had not dealt with the descriptor adequately. I did not hold a hearing about this appeal or receive full argument about those views.
15 What is clear from the descriptor, and is echoed in the policy statement, is that the test of “normal activities” is potentially wide. I agree that the descriptor suggests that the activities to be contemplated are activities of “normal” people, not the previous activities of the claimant. At the same time, the wording of the descriptor suggests that the “overwhelming fear or anxiety” does not have to be experienced in respect of all normal activities. Nor does it have to occur continually to be significant. In this case, for example, the representative asked for consideration to be given to experiences either for “a majority of the time” or “frequently”. It is common ground that “frequently” means less than most of the time. It might fall somewhere near the “often” in the ESA50.
16 It is a question of fact whether an intermittent reaction at the level stated in the descriptor occurring either in temporal terms or in activity terms (or both) meets the test. For example, someone who is genuinely overwhelmed about the idea of going out – and rarely does so - may not be overwhelmed when making a phone call to a friend or neighbour or answering a call on a phone which (like so many phones now) tells her or him who is calling. It is at least arguable that someone who cannot go out most of the time for this reason meets this descriptor at least at some level even though he or she is prepared to sit at home and telephone. There is a balance to be struck between different social situations. Where there is evidence of significant problems with some social situations, there may be a need to explore a wider range of those situations to make a full judgment of the extent of the limitation.
17 One other issue raised by the facts of this appeal is a potential overlap in some cases between descriptor 18 (getting about) and this descriptor. Descriptor 18 is about the mental, cognitive, or intellectual function of getting to somewhere familiar. That must raise a question where, as here, it is accepted (as here) that a person frequently cannot get to somewhere familiar without being accompanied. If so, how can the same individual cope with “normal activities, such as visiting new places…”? Again, that requires adequate fact finding.
18 In conclusion, while there are reasons why the formal descriptors, the ESA50, and the ESA85 all use different terminology this inconsistency does require that a decision maker and a tribunal pay attention to the terms of the statutory test. This requires adequate fact finding. It may not be enough simply to adopt the evidence in either the ESA50 or the ESA85 as determining the statutory test.
David Williams Upper Tribunal Judge 23 02 2010
[Signed on the original on the date stated]
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Post by nickd on Jul 7, 2012 22:30:46 GMT 1
IN THE UPPER TRIBUNAL Case No. CE/191/2010 ADMINISTRATIVE APPEALS CHAMBER
Before Upper Tribunal Judge L T Parker
Decision:
The appeal is allowed. Permission to appeal was given by an upper tribunal judge. The decision of the First-tier tribunal sitting in Cardiff on 27 September 2009 (the tribunal) is wrong in law. I set aside the tribunal’s decision and return the appeal to a new tribunal for a wholly fresh hearing. The upper tribunal is not in a position to remake the decision under appeal as further findings of fact are required. The appeal is not supported by the Secretary of State but, for the reasons set out below, in my judgment, the tribunal erred in law.
REASONS FOR DECISION
Background
1. The tribunal confirmed the decision of a decision maker (DM) on behalf of the Secretary of State dated 27 April 2009 superseding an award of employment and support allowance (ESA) from and including 19 January 2009; that award had been made on the basis the claimant was suffering from depression and low mood. The tribunal accepted the reasons of the health care professional (the doctor) who had undertaken the medical examination on 15 April 2009 on which the DM then relied in making his supersession. On his ESA questionnaire, the claimant described panic attacks, shutting himself off, not answering the phone or door. The doctor did not accept any functional impairment which attracted points and this was followed by the DM.
2. The claimant appealed to a tribunal from the DM’s adverse decision. He attended the hearing with his sister. He produced a note from his general practitioner (GP), dated the day prior to the hearing, which stated he should refrain from work for 3 months and gave the diagnosis as “low mood, depression, agoraphobia, grief, bereavement”. The claimant gave evidence to the hearing to which his sister had nothing to add.
3. To the doctor at the medical examination on 15 April 2009, the claimant said that he “always shops with family due to anxiety”. At the hearing, his evidence included the following:
“Shop with sister, all the time. Can’t go into shop – floor comes up to me. Left trolley in shop last time I went in. We go shopping late at night. I don’t like crowds. …[My sister] does my paperwork for me. Goes to PO for me. When I go places – I get anxious…sit there without light on. If problem in home, I’d ring [my sister]. Don’t like speaking on the phone to people. Never go out with friends – not interested…was referred for MHT but I never went. Walked out of dentist the other day.”
4. The tribunal correctly noted that the burden of proof was on the Secretary of State to demonstrate that supersession of ESA was justified. The tribunal narrated the evidence. The tribunal dismissed the appeal having found as follows with respect to the mental health descriptors:
“…The Tribunal found that the Appellant had no problem with concentration or expression and communicated well during the Tribunal hearing. It was clear that he was self-caring and went about his daily business without problems. He took his medication when needed, which assisted him with his asthma and his mild depression. He has been offered help with respect to his problems with bereavement, but has not taken up that offer. The Tribunal accepted the [doctor’s] findings after the formal examination of the appellant’s physical and mental abilities. There was no other evidence produced by the appellant save for a sick note dated 8/10/09, the day before the hearing. The Tribunal was satisfied that at the date of the decision the Appellant did not have limited capacity for work.”
Appeal to the Upper Tribunal
5. The claimant appeals because of what he considers is a difference in opinion between the doctor and his own GP. Upper Tribunal Judge Jupp gave permission to appeal for the following reasons:
“Permission is given for further consideration of the adequacy of the tribunal’s findings of fact and the reasons for its decision. It does not appear to have explained why the approved disability analyst’s report was accepted in preference to the claimant’s own evidence (see CIB/2308/2001 para 20).
In particular, the tribunal did not investigate why the claimant did not follow up the referral to the mental health team. The doctor’s report stated that “none of the above” applied with regard to coping with social situations despite the claimant’s evidence both in the claim form and at the examination to the contrary. The claimant again confirmed this at the tribunal hearing, but his evidence was rejected, and the examining doctor’s evidence was preferred. As indicated by the headings, (although this is not necessarily conclusive in itself), the statement of reasons does not contain a section where the reasons for its decision are addressed.”
6. The response on behalf of the Secretary of State concentrates on the last 3 sentences of the upper tribunal judge’s reasons when giving permission to appeal. The submission states, firstly:
“The Tribunal did not separate its statement of reasons into headings so its deliberations on each of the activities and descriptors are less clear than if each had its own paragraph. However, I submit that this on its own is not an error of law.”
7. The Secretary of State then turns to how the tribunal dealt with activity 19, which is set out in the submission:
“Activity 19. Coping with social situations Pts
a) Normal activities, for example, visiting new places or 15 engaging in social contact, are precluded because of overwhelming fear or anxiety.
b) Normal activities, for example, visiting new places or 9 engaging in social contact, are precluded for the majority of the time due to overwhelming fear or anxiety.
c) Normal activities, for example, visiting new places or 6 engaging in social contact, are frequently precluded, due to overwhelming fear or anxiety.
d) None of the above apply. 0”
The Secretary of State’s submission continues: “this activity is intended to reflect lack of self-confidence in social situations that is greater in its nature and its functional effects than mere shyness or reticence…the level of anxiety referred to suggests a specific and overwhelming experience of fear, resulting in physical symptoms or a racing pulse, and often in feelings of impending death such as may occur in a panic attack”. The submission points out that the expert medical member on the tribunal is entitled to draw appropriate conclusions from the clinical examination; in the present case the doctor noted:- “the claimant did not appear to be trembling, increased sweating was not apparent, he did not make rocking movements, he coped well at interview, he spoke at a normal rate, he experienced neither depersonalisation or derealisation….”
Discussion
Adequacy of Reasons
8. There has to be a sense of balance about what a tribunal is required to set out in its statement. An upper tribunal judge is concerned with whether the statement of reasons is adequate, perfection is not required, which can be judged only in the context of the evidence and submissions as a whole. What matters is that a party should be able to discern the reasons why his evidence has failed to satisfy. As the tribunal has given no indication why it preferred the doctor’s opinion to the claimant’s own evidence, the reasons are necessarily insufficient.
9. Headings in a statement of reasons are not essential, whether this is, for example, with respect to individual activities and descriptors or relating to the distinction between findings and reasons. However, headings do help to focus a tribunal’s mind on what is both relevant and required. In any event, the crux is that the tribunal moved from “findings” to “decision” but nowhere, either in form or in substance, did it explain its reasoning. If appropriate, the tribunal could have stated its preference for the doctor’s opinion very simply by adopting his clinical findings as its own and stating what it read from those clinical findings on their application to the question whether the claimant did or did not fit a particular descriptor. Without discussion of the clinical findings and what they objectively demonstrated on a balance of probabilities about the appellant’s functional impairment, it was in no way made clear to him why the Secretary of State had discharged the onus of proof.
Activity 19: Coping with Social Situations
10. The text of this activity is set out above, within my paragraph 7. What is meant by “overwhelming” is a matter of fact and degree; it may have a medical connotation. But that same qualifier of “fear or anxiety” is used in the three descriptors which each give a very different pointage; this has the result that the real distinction lies rather in how often preclusion of social activity is caused by the “overwhelming fear or anxiety”. In any event, while the term may indeed reflect severe anxiety as is suggested on behalf of the Secretary of State, the guidance given to health care professionals is in no sense prescriptive.
11. The starting point with respect to the application of any descriptor is regulation 19(2) of the Employment & Support Allowance Regulations 2008 which provides:
“The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.”
It is against that background that a tribunal, using its expertise, applies individual descriptors. The primary condition is thus that there is a specific disease or bodily or mental disablement which causes the inability to perform the particular activity or task in issue. If a claimant, for example, establishes mental disablement which results in fear or anxiety such that he is wholly unable to undertake normal activities like visiting new places or engaging in social contact, there would seem to be no free-standing need to demonstrate “overwhelming” fear or anxiety. From the wording of the whole phrase, the use of “overwhelming” seems to add nothing once the other constituents are shown: if the shoe otherwise fits, this would in itself appear to demonstrate that the fear or anxiety is correctly described as “overwhelming”.
12. What is important, however, is that a tribunal explains how it has reached its conclusions on the application of descriptors, probably in terms of clinical features but not necessarily so. So long as there are sufficient findings of primary fact to underpin any inferences drawn and its process of reasoning is adequately explained a tribunal may not be faulted. The present tribunal accepted the doctor’s findings after his formal examination of the appellant, as it was entitled to do, but did not give even a brief explanation of how this meant that satisfaction of activities such as Activity 19, which possibly applied on the basis of the claimant’s own evidence, had been successfully refuted by the Secretary of State.
Activity 18: Getting About
13. This activity is in the following terms:
Points
“18(a) Cannot get to any specified place with which the claimant is, or would be, familiar. 15
(b) Is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person on each occasion. 15
(c) For the majority of the time is unable to get to a specified place with which the claimant is familiar without being accompanied by another person. 9
(d) Is frequently unable to get to a specified place with which the claimant is familiar without being accompanied by another person 6
(e) None of the above apply 0”
14. The main difference between 18(a) and other descriptors within the activity is that, to satisfy 18(a), the claimant’s condition must be so severe that he cannot even get about when accompanied; then the distinctions between 18(b) and the succeeding paragraphs relate to the incidence of the occasions when the claimant is unable to get about unless he has a companion. 18(a) and 18(b) each give 15 points, which satisfies the test, even though the functional impairment of a claimant under 18(a) is clearly more serious than that under 18(b). There are instances of other activities, for example activity 15 and activity 16, where this is also the case: the apparent rationale is the provision of an overall worst case scenario which obviously qualifies, combined with a recognition that, nonetheless, a less serious but still very severe functional impairment should also satisfy. Thus it is already inherent within the schedule that differing degrees of disability, referable to the same activity, may nonetheless attract the same pointage.
15. With respect to descriptors 18(a) and 18(b) there is a further difference in the level of incapacity required, which is important in the present claimant’s case. Descriptor 18(a) encompasses an inability to get to “any specified place” (my emphasis) whereas 18(b) covers an inability to get to “a specified place” (my emphasis). S.6(c) of the Interpretation Act 1978 provides: “In any Act, unless the contrary intention appears … words in the singular include the plural and words in the plural include the singular”. As the word “any”, however, usually means “all”, particularly when expressly contrasted with the use of “a”, this provides the necessary contrary intention. The deliberate use of different terminology implies that “any specified place” means, in effect, anywhere at all; whereas the phrase “a specified place” reads more naturally that it could include just one kind of place. In the present case there is evidence that the claimant is unable to go to shops “without being accompanied by another person” and it is possible that that situation always obtains. If, on the facts, the claimant is never able to go to shops, albeit those with which he is familiar, without being accompanied by, for example, his sister (as the evidence seems to suggest) then descriptor 18(b) potentially applies, even though the restriction is not as geographically all embracing as that under 18(a); it still represents a severe level of functional impairment.
Summary
16. The appeal is therefore remitted to a new tribunal to begin again. It is emphasised it will be a complete rehearing on the basis of the evidence and argument available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merits is entirely for them. Although there has been success in this appeal limited to issues of law, the decision on the facts of the case remains open. The GP’s Med 3 of 8 October 2009, listing “agoraphobia” as one of the conditions in the claimant’s case, is after the date of the relevant decision, but it still would be evidentially relevant to the claimant’s circumstances in April of the same year if his condition did not improve in the intervening months.
(Signed)
L T Parker Judge of the Upper Tribunal
(Date) 30 July 20
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Post by nickd on Jul 8, 2012 0:25:20 GMT 1
IN THE UPPER TRIBUNAL Case No CDLA/2156/2010 ADMINISTRATIVE APPEALS CHAMBER
Before UPPER TRIBUNAL JUDGE WARD
Decision: The appeal is allowed. The decision of the First-tier Tribunal sitting at Exeter on 5 May 2010 under reference 194/10/00161 involved the making of an error on a point of law and is set aside. The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 18 of the Reasons.
REASONS FOR DECISION
1. Both the claimant and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing. That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail. I need only deal with the reason why I am setting aside the tribunal’s decision.
2. The claimant has back pain, depression and bowel and bladder problems, resulting in incontinence. He is also obese. He lives alone and has very limited social contacts, these being essentially confined to the church of which he is a member.
3. By a decision dated 24 November 2008, as revised on 5 January 2009, the claimant had been awarded the lowest rate of the care component of Disability Living Allowance from 24 October 2008 to 9 September 2010 (both dates included) but not the mobility component at either rate. On or around 7 September 2009 the claimant applied for supersession on the grounds that his conditions were worsening and he was developing new medical problems. On 4 December 2009 a decision was taken not to supersede, as the outcome was unchanged.
4. The claimant appealed and expressly requested an oral hearing on his GL24 appeal form. He sought advice under the Legal help scheme from the Citizens Advice Bureau, who, while not in a position to attend with him, provided a written submission which was received five days before the hearing and which duly found its way in time into the tribunal papers for the hearing. This was a substantial piece of work, prepared with considerable care. The submission indicated that the claimant had understated his care needs on his form and reviewed the medical evidence before continuing:
“I submit that [the claimant’s problems are considerable; anyone with this combination of disabilities and on this level of medication is bound to be affected in such a way that day to day life is made substantially very difficult. That [the claimant] lives on his own should not be taken as an indication that he is self-managing, it merely means he has to cope on his own. He has explained how he struggles to cope with the combined effects of his disability, when talking to him it is apparent that he is also very depressed. [The claimant] has told me that he is unsure whether he will be able to attend the Tribunal because he feels he needs someone to be with him. I am given to understand that he contacted the Tribunals Service and explained his fears about attending, he tells me that he would prefer to be accompanied, he has asked his priest but unfortunately he is unable to attend on the day. I have tried to persuade him to attend so that the tribunal can hear first hand how difficult he is finding it on his own.”
5. The submission then contained a diary extract and four pages of analysis of the claimant’s care needs, in support of an argument that he was entitled to the middle rate of the care component. In the course of this the CAB worker wrote:
“Although [the claimant] says he does not need help with coping with going out, he admits to being petrified at the prospect of attending the Tribunal. I saw him on the 27th April in preparation for his hearing and he told me how agitated he was by it all, he wanted to ‘give up’ because he could not face going on his own. Unfortunately Legal Help does not extend to representation at the hearing so I am unable to attend; we have no resources to provide anyone to go with him merely for support, nor has he got any one to call on to go with him. I fear he may not attend.”
6. A hearing had been arranged, in accordance with the claimant’s original request and as indeed the tribunal was obliged to do by virtue of rule 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, the claimant having neither consented to, nor failed to object to, the case being dealt with without one. The claimant did not attend. As recorded by the tribunal in its statement of reasons:
“We noted that [the claimant] did not attend the hearing of his appeal, it being listed for hearing at 11.40 and [the claimant][ not attending at 12.00. We gave very careful consideration as to whether or not we had sufficient information upon which to reach a reasoned decision and we decided that we did have such adequate information before us. Accordingly…the appeal…was unsuccessful.”
7. When the claimant failed to attend, the matter was governed by rule 31:
“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.”
8. Rule 2 provides, so far as relevant: “2.— Overriding objective and parties' obligation to co-operate with the Tribunal
(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
(2) Dealing with a case fairly and justly includes— (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; (d) using any special expertise of the Tribunal effectively; and (e) avoiding delay, so far as compatible with proper consideration of the issues.
(3) The Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules; or (b) interprets any rule or practice direction. …”
9. Accordingly, in considering whether to go ahead in the absence of the claimant, the tribunal had: (a) to decide whether the conditions of limb (a) and limb (b) of rule 31 were met. If they were not, the discretion whether to proceed did not even arise; and (b) if they were, to consider the exercise of the discretionary power it had.
10. Rule 2 was potentially relevant in more than one way. By rule 2(3)(b) the overriding objective was relevant when interpreting any rule or practice direction. When considering the “interests of justice” in rule 31, guidance is available from what “dealing with a case fairly and justly” includes, as set out in rule 2(2). Rule 2 was also relevant when it came to exercising the tribunal’s discretion (assuming the conditions for the discretion to arise were met.)
11. In the present case, the tribunal gave very careful consideration to whether it had sufficient information to enable it to reach a reasoned decision. That was an important matter to consider, but it was not the only one. In this case, the claimant had clearly stated the wish to attend. However, probably through some combination of personality, mental ill-health and the potentially difficult and embarrassing nature of some of the likely topics for discussion, the claimant was finding it difficult to contemplate attending alone. The only person who, it appears, might have been able to support him, his priest, was unavailable on that particular day. All of this was known to the tribunal.
12. Only a few days before, the CAB was still urging the claimant to attend, though unsure whether he in fact would. Of course, it would have been better if the claimant, either directly or through the CAB, had expressly applied for an adjournment once he had concluded that he could not attend. But even without such an application, the tribunal was still bound to apply rule 31. In doing so, in my judgement it limited its field of inquiry unduly narrowly by considering only whether it had enough evidence to enable it to reach a reasoned decision. While that may have been so, it was also relevant, particularly in the light of the written submission from the CAB, to consider whether further useful evidence was likely to be forthcoming if the tribunal did hear from the claimant and whether it was just to deprive the claimant, who had expressly requested the opportunity to attend the tribunal, of the opportunity to give his evidence in person in the circumstances set out in [11] above.
13. Of course, there are a number of factors called into play, including by the terms of rule 2, and they will not all point in the same direction. However, (c), “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings”, needed to be part of that mix of factors. Balancing them would pre-eminently be a matter for the First-tier Tribunal. But what in my judgement it was not entitled to do, but did, was to limit the factors which it considered more narrowly than its rules of procedure permitted.
14. The opportunity to hear from the claimant was capable of providing useful evidence and to do so directly as to matters which thus far had only been covered by the CAB’s submission. The only known problem with the claimant being accompanied by his priest was the latter’s unavailability on the particular day, thus it seems likely that both would have attended a further hearing. The point is thus far from an academic one.
15.The tribunal judge in refusing permission to appeal questions whether, as the claimant had said that he was “petrified at the prospect of attending the tribunal”, he would attend even with his priest. He also observed that “In the [considerable] experience of the tribunal religious people are often unable to attend a pre-arranged attendance at a Tribunal due to unexpected and untoward effect such as attending scenes of fatal accidents, administering Last Rites, conducting funeral services etc.” I do not comment on these, as there is no indication in the statement of reasons or the decision notice that any of these considerations, whether or not valid, were in the tribunal’s mind when it exercised its discretion.
16. One can view the error of law as either construing the “interests of justice” in rule 31 too narrowly, with the result that the tribunal’s discretion whether to go ahead never arose in the first place, or, if a different view is taken on that point, as failing sufficiently to apply the factors required by rule 2 when considering the exercise of the discretionary power.
17. I do not need to deal with any other error on a point of law that the tribunal may have made. Any that were made will be subsumed by the rehearing.
18. I direct that the First-tier Tribunal must liaise with the claimant and his present representative with a view to finding a hearing date when the claimant can be accompanied by his priest or another available person by whom the claimant wishes to be accompanied. The tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh. The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against (4 December 2009) – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.
19. The above directions are subject to any further direction which may be given by a District Tribunal Judge, in particular as regards listing.
19. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.
(signed) C.G.Ward Judge of the Upper Tribunal 3 March 2011
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