Decision-making and appeals caselaw summaries

As of 17 March 2015 no more additions will be made to this case law pack. New decision summaries will now only be published, initially, as a news item and then in the yearly summaries. If you wish to find a particular decision on our website you can use our search facility.

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Back to case law summaries.

1. Introduction
2. Appeals to the Upper Tribunal
3. Claims
4. Decisions, Revisions and Supersessions
5. Disability Discrimination Act
6. Error of Law
7. Failure to disclose
8. Fair hearing
9. Human rights
10. Oral or paper hearing
11. Order of precedence of decisions
12. Postponements, withdrawals and adjournments
13. Representative's role
14. Res Judicata
15. Role of decision makers, submission writers, presenting officers and witnesses
16. Statement of reasons and record of proceedings
17. Transitional Rules
18. Tribunal function and role of members

1. Introduction

This is a regularly updated digest of summaries of past case law and commissioners decisions related to adjudication issues. You can search this web page in internet explorer by selecting "Find" from the "Edit" menu.

Should you need to get hold of a copy of any of the decisions described in this pack please see our Factsheet F19 - finding the law.

You may also wish to download the other digests of case law on our website at disabilityrightsuk.org.

Since 3 November 2008 social security, tax credits and war pensions commissioners' decisions are known as decisions of the Upper Tribunal (Administrative Appeals Chamber). Commissioners are now also known as judges. There is also a new numbering system.

When an appeal is first lodged with the Upper Tribunal in England and Wales it is given a reference number in the form CDLA/234/2010, where: ‘C' indicates the decision is unreported; the initials following indicate the benefit claimed (in this case disability living allowance); the first set of numbers is a specific reference for the case and 2010 is the year that the appeal was lodged. The decision will keep this reference unless it is published on the Tribunals Service website or is reported.

If a decision is thought to be of importance it is published on the Tribunals Service website. The decision then acquires a reference such as for example KS v Secretary of State for Work and Pensions (JSA) [2009] UKUT 122 (AAC)

KS v Secretary of State for Work and Pensions (JSA) are the parties to the appeal (KS is the initials of the person who claimed the benefit)
JSA indicates the benefit claimed (in this case, jobseeker's allowance)
[2009] UKUT indicates a decision published on the website in 2009 and made by the UK Upper Tribunal
122 is the reference number
(AAC) indicated that it is the Administrative Appeals Chamber.

Decisions published on the website carry no more legal weight than any other decision.

If a decision goes on to be reported, an additional reference is added. In this instance it becomes KS v Secretary of State for Work and Pensions (JSA) [2009] UKUT 122 (AAC) [2010] AACR 3. The reference [2010] AACR 3 indicates it was the third decision reported in the Administrative Appeals Chamber Reports of 2010. The first time the decision is referred to it should be cited in full. Thereafter, abbreviations for the parties and benefit can be used, eg KS v SSWP (JSA).

2. Appeals to the Upper Tribunal

Note: A new appeal structure began on 3 November 2008 with the creation of a two tier appeal system - the upper and lower tribunals. Under the new system commissioners are now known as upper tribunal judges.

abatement of appeal where claimant deceased

In CH/3631/2006 the claimant died after his appeal had been heard and the local authority sought to take the appeal to commissioners.

Regulation 21 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 allows a relevant authority to appoint someone to lodge an appeal in the place of the deceased but regulation 1(2) of the same regulations states that "appeal" means an appeal to an appeal tribunal not to a commissioner.

There is no equivalent rule in the Social Security Commissioners (Procedure) Regulations 1999 (these have now been replaced by the (Tribunal Procedure (Upper Tribunal) Rules 2008 - SI 2008/2698)so following R(S)7/56, R(I) 2/83, R(I)2/83, R(SB)25/84), R(SB) 8/88 and R(IS) 6/01 the case is abated and does not proceed.

absence of record of tribunal proceedings

CDLA/1389/1997* (74/98) states that the absence of a record of tribunal proceedings is itself an error of law if a commissioner needs them in order to decide if there was an error of law in the actual proceedings. See also R(DLA)3/08 in section 15. Statement of reasons and record of proceedings.

breaches of natural justice

CDLA/5574/2002 states that a commissioner does not require statements from tribunal members when deciding breaches of natural justice. See also CIB/3586/2008 [2009] UKUT 30 (AAC).

commissioner's directions

In CSDLA/101/2000, following reg 22(2) Commissioner’s Procedures Regs 1987 (now revoked and replaced by reg 28(2) Commissioner’s Procedures Regs 1999) a tribunal cannot rely on directions made by a commissioner under reg 22(2) which do not contain reasons since there is insufficient explanation for the conclusion the commissioner made. See also R(DLA)5/01 (formerly CSDLA/646/1999). Note: Reg 28(2) Commissioner’s Procedures Regs 1999 has now been replaced by regulation 40 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

commissioner's jurisdiction - Section 13(3) Social Security Act 1998 where there are separate submissions

CIB/2949/2005 states that section 13(3) compels the tribunal chairman to set aside a decision where "each of the principal parties to the case expresses the view that the decision was erroneous in point of law". This was true in this case but each of the parties made separate submissions and by the time the second was received the matter was before the commissioner. Under section 14(7) the commissioner could have set aside the decision but because one submission was earlier opted to use section 14(8) which allowed him to substitute his own decision.

failure to provide full statement of reasons

In CSDLA/551/1999* (17/00) a statement of reasons was requested orally at the appeal but the summary decision stated “The appeal fails, this is a full decision.” Tribunal had erred in law in failing to provide a full statement.

judicial review

The Supreme Court Judgments R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent) and R (on the application of MR (Pakistan)) (FC) (Appellant) v The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department (Respondent) state that the grounds for judicial review should be limited to the grounds upon which permission to make a second-tier appeal to the Court of Appeal would be granted under the Tribunals, Courts and Enforcement Act 2007. These are that (a) the proposed appeal would raise some important point of principle or practice, or (b) there is some other compelling reason for the court to hear the appeal.

Eba (Respondent) v Advocate General for Scotland (Appellant) (Scotland) states that the principles outlined in Cart (above) should now also be applied in Scotland.

leave granted by another chair

CIB/227/2000* (51/01) states that where a different chairperson to the one who chaired the tribunal grants leave to appeal to a commissioner, full reasons should be given.

leave to appeal without a statement of reasons

This is now allowed under regulation 21 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

CIB/3586/2008 [2009] UKUT 30 (AAC) deals with appeals to the upper tribunal where a request for a statement of reasons was refused on the grounds that it was not made in time.

persistent use of the appeals process

CI/1009/2009 [2009] UKUT 206 (AAC) discusses ways of using the law to prevent a claimant who makes persistent (in this case a doomed attempt to re-open a previous decision) use of the appeals process from making further appeals by providing a final (non appealable) decision. The judge reluctantly concedes that the claimant cannot be prevented from applying for a supersession, which can lead to an appeal to the upper tribunal. Though it is possible to make such appeals harder.

rehearing

CS/1753/2000* (23/01) says that it is undesirable for a chair of a tribunal whose decision has been set aside to consider an application for leave to appeal against the decision of the tribunal who reheard this set aside appeal.

refused appeal to a tribunal by a legally qualified panel member

Secretary of State for Work and Pensions v Morina and Borrowdale [2007], reported as R(IS)6/07 states that decisions where an appeal to a tribunal is refused by a legally qualified panel member (LQPM) are not to be regarded as decisions of appeal tribunals and are not “decisions” appealable to a Commissioner under section 14(1) of the Social Security Act 1998. See also CHR/3855/2005.

time limits

R(IB)4/02 (CIB/3937/2000) is concerned with applications to Commissioner without a written statement but chiefly discusses time limits for application in relation to regs 53 and 54 of Social Security and Child Support (Decisions and Appeals) Regulations 1999. CIB/4791/2001 discusses time limits for application in relation to reg 58.

3. Claims

advised not to claim

In CI/2000/2004 a claimant with RSI enquired about claiming IIDB but was informed over the telephone that she would not qualify and that she would not be sent a claim form. She tried to argue that the failure to supply a form under regulation 4(5) of the Social Security (Claims and Payments) Regulations 1987 amounted to official error, preventing her from making a claim in writing under regulation 4(1) of the same regulations. However failure to send a claim form did not prevent the claimant from making an application in writing by letter, which would also satisfy regulation 4(1). The assessment over the phone did not amount to a claim made in writing (if this was a case of misdirection the proper course of action is to claim compensation).

Destruction of claim documents

R(IS)11/92 states that no adverse conclusion should be drawn from the routine destruction of social security documents.

In CIB/62/2008 the tribunal papers were no longer available because of a delay by the claimant in contacting the tribunal clerk. The commissioner decided that, as the destruction of the papers was routine there was a strong presumption that procedures had been properly followed. A claimant would need to provide strong alternative evidence to rebut that presumption.

4. Decisions, Revisions and Supersessions

appeals against “outcome" decisions where new issues arise

CIS/624/2006 is a decision of a tribunal of commissioners which discussed whether, when allowing an appeal against an ‘outcome’ decision a tribunal was always bound to substitute another ‘outcome’ decision where a new issue was raised. The claimant has asked leave to appeal to the Court of Session.

It was held that a tribunal must not ignore an issue that is clearly apparent from the evidence but is not bound to make a decision on every issue raised by the appeal if there is a more appropriate way of dealing with them.

"When an appeal against an outcome decision raises one issue on which the appeal is allowed but it is necessary to deal with a further issue before another outcome decision is substituted, a tribunal may set aside the original outcome decision without substituting another outcome decision, provided it deals with the original issue raised by the appeal and substitutes a decision on that issue.

The Secretary of State must then consider the new issue and decide what outcome decision to give. In that outcome decision, he must give effect to the tribunal's decision on the original issue unless, at the time he makes the outcome decision, he is satisfied that there are grounds on which to supersede the tribunal's decision so as, for instance, to take account of any changes of circumstances that have occurred since he made the decision that was the subject of the appeal to the tribunal."

The new decision made by the Secretary of State would be an outcome decision which could be appealed by the claimant if necessary. The commissioners were also asked by the Secretary of State to give guidance to tribunals.

1. In order to assist tribunals, the Secretary of State's submission to a tribunal should indicate whether it is considered that, if the appeal is allowed, there are any outstanding issues that need further consideration and whether the Secretary of State wishes the tribunal to deal with them.

2. Where a tribunal, having dealt with the issues originally raised in an appeal, is not able immediately to give an outcome decision, it must decide whether to adjourn or whether to remit the question of entitlement to the Secretary of State if he would be in a better position to decide the issue and to seek further information from the claimant.

3. The tribunal's decision, as recorded on the decision notice issued at the conclusion of the hearing, should explicitly record what has and has not been decided and in particular, should make it absolutely clear whether the tribunal has made an outcome decision (subject, in some cases, to the precise amount being calculated by the Secretary of State) or has remitted the final decision on entitlement to the Secretary of State.

appeals against a refusal to set aside

CDLA/2818/2009 [2010] UKUT 103 (AAC) states that refusals to set aside a decision under rule 37 of the Tribunal Procedure (First-Tier Tribunal)(SEC) Rules 2008 are appealable.

burden of proof

R(S)/13/54 & R(S)13/52 states that at the beginning of the claim, the burden of proof lies with the claimant.

R(S)/3/90 states that at the review stage, it is the decision maker who must show that the claimant is not entitled. CIB/378/2001* (72/01) states that the Secretary of State must establish grounds for making a supersession. If a claimant states that there has been no change then the tribunal should consider the earlier medical report. See also CIB/2338/2000* and CIB/1509/2004.

In CSDLA/637/2006 a claim that a claimant's condition had improved and her needs reduced was rejected because the Secretary of State had failed to provide comparative evidence to establish that a tribunal had erred in maintaining an award - it is necessary to compare the circumstances as they were at the time of the award with those at the time of the supersession. See also CSDLA/822/2006.

CE/1005/2010 [2010] UKUT 340 (AAC) suggests that during the ESA assessment phase there is no formal burden of proof on either side.

cases pending

CDLA/1418/2004 states that the Secretary of State has the power to serve notice requiring a tribunal to stay an appeal to await the outcome of another case or to decide a case against a claimant following the result of another appeal (in this case Moyna). Guidance issued by the President of the Appeals Service is not similarly binding.

condition at the time of the decision

CDLA/2878/2000* (61/01) states that tribunals must not exercise hindsight when making a decision. What matters is what was known at the time. In this case the issue concerned whether the claimant was likely to continue to satisfy the disability condition for six months. See also CIB/3126/2002.

consideration of unappealed component

CDLA/1400/1997 reaffirms that tribunal 'need not' consider an unappealed component unless 'evidence of substance' was raised in relation to it. If the tribunal proposes to deal with an unappealed component the claimant should be put on notice. See CDLA/2929/1995 which discusses this point. See also R(DLA)1/1995 which states tribunals should look at both components if there was evidence and CDLA/180/1994 which states that tribunals need not look at both components. CSDLA/169/1994 states that there must be something of "some substance" to indicate an error in the award before the tribunal should look at an unappealed component. CSDLA/362/1998 states that the decision maker need not look at both awards where only one is disputed but should inform the claimant of any intention to review the other component and provide him or her with the opportunity to comment on any evidence obtained.

consideration of whole award

CDLA/1000/2001* (118/01) states that tribunals are entitled to consider the whole of an award, including life awards. Reaffirms that tribunal cannot determine issues beyond the date of the decision.

defective decisions

In CSIB/1268/2000 the claimant had a medical which indicated insufficient points but the case was not referred to a decision maker for a supersession (which requires grounds) but was instead referred for a decision. Tribunal should have allowed appeal because this decision was “inept”. The tribunal could not correct this decision themselves because it was “deficient in substance”.

CSIB/51/2001* (100/01) states that where a secretary of state's decision appears to be defective, a tribunal cannot automatically find a claimant entitled to IB. The Tribunal has a duty to correct any deficiencies in a decision and consider merits of case. Makes reference to to . See also CSIS/137/1994 (para 47(1) of the appendix) and CSIB/1266/2000.

CDLA/4222/2004 discusses the correct approach when considering a situation where a superseding decision was held to be wrong and questions were raised about the original decision.

CSIB/331/2009 outlines the proper procedure to be followed by First-tier Judges when reviewing a decision and subsequently amending a Statement of Reasons.

determinations and decisions

CIB/2338/2000* (50/01) states that findings of fact, such as those related to the personal capability assessment are determinations. Determinations are used to make decisions. Determinations cannot be appealed, decisions can.

Where there is an outcome decision (a change that affects the claimant's pocket) arising from a determination it can be appealed against. Previous assessments may need to be considered by a tribunal where a claimant states their condition is unchanged or where it fluctuates.

See CIB/3667/2000 and CIB/1972/2000 which held that decision makers can supersede an earlier award if an adverse medical report is received but that they may need to make a comparison with an earlier assessment if the claimant appeals or asks for a review. Also restated in CIB/3179/2000* (135/01) and CIB/3985/2001. See also CIB/378/2001 and CIB/3899/1997.

how to approach supersessions

CSDLA/765/2004 states that grounds for supersession must first be established and then conditions for entitlement investigated.

jurisdiction of appeal tribunals

R(IB)2/04 (CIB/4751/2002, CDLA/4753/2002, CDLA/4939/2002, CDLA/5141/2002) is a massive 64 page decision by a tribunal of commissioners which analyses the jurisdiction of appeal tribunals and their powers in relation to revisions and supersessions.

The main conclusions are:

Decisions can only be superseded or revised if there are grounds. The decision can only be superseded or revised in a way which follows from that ground.
An appeal following a decision to revise is an appeal against the original decision, not the revised one.
The time limit for appealing against a revision is from the date of the decision to revise or not to revise.
Where grounds for revision need to be established it is potentially misleading to describe an appeal as against an original decision as it may also be concerned with questions as to whether there was ground for revision.
On an appeal against a revision on the ground of official error the claimant must establish that the original decision arose from that official error.
Tribunals have the power to amend and correct decisions by revision or supersession as appropriate. See CDLA/107/2012 [2012] UKUT 330 (AAC): which discusses the need for a tribunal to identify ground to supersede an existing DLA component award.
The tribunal has the power to correct defective decisions. There is no error of law if the tribunal does not set aside and reformulate a defective decision under appeal unless the decision as expressed is wrong in some material respect or there would be some benefit to the claimant or the adjudication process in reformulating the decision.
An issue "raised by the appeal" is one raised by one of the parties at or before the appeal tribunal's decision.
An appeal tribunal can make a decision less favourable to the claimant than the decision under appeal. See CDLA/2084/2007, which found that the tribunal erred in failing to give adequate notice to the claimant of an intention to reduce an award.
Supersessions made by a tribunal that have an adverse effect should be regarded as made "on the Secretary of State's own initiative".
An application for renewal of a DLA award where one component is for a fixed period and the other for an indefinite period must be treated as an application for supersession of the whole award.
Regulation 13C(3) of Social Security (Claims & Payments) Regulations 1987 is a free-standing power to revise DLA on review. It does not additionally require one of the grounds for revision. However, it can only be exercised where the claimant's condition has improved to a greater extent than expected between the date of decision and the renewal date or has not deteriorated during that period to the extent anticipated by the decision maker.

See also CDLA/1821/2003 below. See also CSDLA/612/2006, which refused to correct a poor decision and referred the case back to the Secretary of State to sort out.

material fact

CDLA/2160/2003 states:

"There is all the difference in the world between a decision made on an incorrect factual basis (the correct ground) and one which somebody else looking at the same factual basis should have led to different assessment."

In CSDLA/251/2007 the decision maker removed an award on grounds of a mistake as to a material fact. The tribunal upheld this. Both erred because the decision was based on new evidence, which indicated a possible change of circumstance rather than an error of fact at the time of the original decision.

CIS/3655/2007 states that a material fact is one that would have made a difference. In this case the commissioner found that the claimant had not not identified a new fact of which the tribunal was ignorant but additional evidence of which that tribunal had been unaware.

new medical evidence

CIB/1509/2004 say that new medical evidence authorises the supersession process but does not dictate its outcome, that being left to the decision-maker. See also CDLA/2668/2009 [2010] UKUT 312 (AAC) where an IB medical led to a supersession on grounds of ignorance or mistake as to a material fact.

no decision to decide

CDLA/9/2001* (131/01) states that tribunals cannot decide a case where no actual decision has been submitted in the papers. In this case it meant that no grounds for supersession were identified. See also CDLA/2795/2001* (135/01) CDLA/4977/2001and CDLA/2033/2001.

CDLA/557/2001* (142/01) states that a tribunal adjournment cannot be appealed to commissioner unless it can be established that it is a 'final' decision. This is defined as "a decision which disposes of all the substantive points which were before the tribunal, or makes some interim disposal of the case which either makes it more than likely that the case will be disposed of finally in a particular way or leaves one of the parties with no means of ensuring that there will be a final disposal of the case, or leaves one of the parties at the risk of an injustice". Other case law on this issue is discussed in this decision.

powers to correct defective decisions

In CIS/4434/2004 it was determined that a couple was living together as husband and wife. However the tribunal had no powers to decide on the resultant "assumed" overpayment because no decision had actually been made concerning the entitlement of the original claimant. Cites R(IB)7/04 (formerly CIB/2836/2002) which deals with decisions that are "so fundamentally flawed as to be inconsistent with any proper exercise of a legal power" and beyond the remedy of a tribunal. See also CH/3935/2007.

preliminary investigations

CDLA/3688/2001 states that when considering the date and type of decision (revision or supervision) any time spent on preliminary investigations is ignored.

proof that a decision was made

CH/3801/2008 [2009] UKUT 27 (AAC) states that there is no requirement to produce a copy of an actual decision as proof that it has been made if this can be deduced from other evidence.

refusal to revise

CIS/4/2003, a decision of a tribunal of commissioners, decided that, generally, there was no right of appeal against a refusal to revise on grounds of official error. This is because the right of appeal is against the decision as originally made or revised. There is no free-standing right to appeal against a revision. Thus in the case of a refusal to revise the claimant will have to appeal against the original decision which will often be impossible because they will be out of time. The only exceptions to this are where the revision is requested within the normal one-month period of the original decision (or following the 14 day extension) or where a late appeal is granted (which can only be allowed within thirteen months of the original decision).

CDLA/1821/2003 states that a tribunal has the power to replace a superseding decision with a decision revising the original decision but there is no power to revise a decision that the Secretary of State has already refused to revise. Regulation 6(3) and 3(5) Social Security and Child Support (Decisions and Appeals) Regulations1999 and CIB/4751/2002 allow a tribunal to revise on grounds of official error if the Secretary of State has failed to consider this.

rehearing argument in overpayments appeals

CDLA/1491/2010 [2010] UKUT 452 (AAC) highlights a potential problem for decision makers when an appeal against both an entitlement decision and an overpayments decision are heard separately. This has advantages for the claimant because it means that the issues discussed within an entitlement appeal, if heard first, can be reargued in the overpayments appeal if the entitlement appeal is unsuccessful. In such circumstances it would appear to be a good idea for a claimant to appeal against both the entitlement decision and any overpayments decision but not to actively pursue any request that both appeals be heard together.

CDLA/1838/2010 [2011] UKUT 14 (AAC) held that an overpayments tribunal had erred in law in believing it was bound by the findings of fact made by an earlier entitlement tribunal. The overpayments tribunal was entitled to make different findings of fact, even on the same evidence, which might have meant that an overpayment was not recoverable.

See also CA/2650/2006 and CIS/384/2010 [2010] UKUT 428 (AAC).

relevant change of circumstance

In R(IB)1/05 (formerly CIB/790/2004) a claimant failed to provide medical evidence (certificates) and fell to be considered under the personal capability assessment. A relevant change of circumstances for the purposes of a supersession is the failure of a subsequent pca rather than failure to provide evidence.

renewals

R(A)1/89 states that where there is a renewal claim the decision maker should look at the medical evidence in the previous claim. Where this is not available he or she should defer their determination until that evidence has been seen otherwise an error of law will be “virtually inevitable”.

In CDLA/4032/2006 documents relating to a previous award were not available and a paper hearing was held because the claimant was too ill to attend. The claimant contended in writing that her condition had not changed or worsened. The tribunal did not accept this but failed to properly explain why. It was suggested that a domiciliary hearing should be considered by the new tribunal.

R(DLA)4/05 (CDLA/2751/2003, CDLA/3567/2003, CDLA/3725/2003) is a decision of a tribunal of commissioners, which states that tribunals can amend or disallow a decision between the date of that decision and the renewal date, such as in cases where the renewal form is returned early. See also CSA/248/2002, CDLA/3848/200, and CDLA/4708/2002.

R(M)1/96 places a duty on tribunals to make the reasons for its decision understandable in cases where their decision is less generous than a previous award.

"..if the reason for differing from the previous decision does not appear or cannot be inferred with reasonable clarity from the tribunal's record, it will normally follow in my view that they will be…in error of law." (from para 16)

See also CDLA/2372/2007. CDLA/2300/2008 stated that R(M)1/96 was not considered relevant in cases where a claimant was not arguing for the previous component to be reinstated (such as high rate care component) but for an intermediate rate of benefit (such as middle rate care component). The tribunal therefore does not need to refer to a previous award.

CDLA/3461/2006 confirms that section 72(2)(b)(i) of the Social Security Contributions and Benefits Act 1992, which states that a condition must continue for a period of at least six months applies to renewal claims.

In CDLA/3660/2008 [2009] UKUT 82 (AAC) the tribunal incorrectly superseded a decision on a renewal claim from the date of the hearing instead of from the renewal date.

short awards

In CDLA/2349/2008 a tribunal heard the case on 15 May 2008 and awarded DLA up to 7 May 2008, which did not give the claimant time to make a renewal claim. The commissioner extended the award to 7 November because the tribunal had failed to give reasons for the short length of the award.

supersessions - right of appeal

Wood v Secretary of State for Work and Pensions (2003) (R(DLA)1/2003) held that there is a right of appeal against a decision to supersede (i.e. change) or refuse to supersede a DLA decision unless an application for supersession is obviously hopeless, i.e. there are no conceivable grounds for supersession. This decision overrules R(DLA)6/02. See also CDLA/2115/2003, CSDLA/1068/2001 and CDLA/3875/2001 which discusses an error in law where the Secretary of State failed to identify threshold criterion when superseding a decision. See also CI/1132/2000 and the major decision R(IB)2/04.

supersessions where the original decision was subsequently set aside

In R(DLA)2/04 (CDLA/2968/2003) a DLA decision went to appeal and was lost. The claimant requested both a supersession of the tribunal decision and leave to appeal to commissioner, (which was granted). The supersession subsequently went to tribunal and was dismissed. The commissioner in CDLA/4974/2002 referred the decision to another tribunal. This sets out rules for the treatment of such circumstances.

1. An application for supersession that results in a refusal to supersede the original decision does not terminate the period under consideration on an appeal against the original decision.
2. Live proceedings arising out of an application for supersession based on ignorance of, or a mistake as to, a material fact lapse when the decision to be superseded is set aside on appeal (provided that there is no further appeal in respect of the original decision.
3. Live proceedings arising out of an application for supersession based on a change of circumstances do not lapse when the decision to be superseded is set aside on appeal (but the application may have to be treated as an application for supersession of a different decision or, perhaps, as a new claim, depending on the circumstances.

test cases

CDLA/2803/2009 [2010] UKUT 130 (AAC) discusses backdating for cases affected by a test case.

time limits for award - children and young persons

CDLA/3831/2002 states that a tribunal was wrong to limit an award where the claimant is young but likely to satisfy this condition for a long (or lifelong) period.

CDLA/4331/2002 states that tribunals and decision-makers can take account of changes in circumstance when making a decision. This case concerned a girl who was under age 16 when the decision was made but who was about to become 16 (when the cooking test would apply).

ultra vires regulations

In CIS/2274/2009 [2011] UKUT 227 (AAC) Judge Levenson confirmed that the Upper Tribunal retains the Commissioners’ powers to quash regulations as ultra vires and also considers the extent of that power, and the Upper Tribunal’s jurisdiction to consider points of law not raised before the First-tier Tribunal:

a. The Upper Tribunal has jurisdiction to determine whether subordinate legislation is invalid as being beyond the scope of the enabling power (paragraph 21);

b. the Upper Tribunal also has the power to find subordinate legislation to be invalid if it conflicts with statutory rights already enacted by other primary legislation (paragraph 27) but only in cases where there is no other reasonable way to exercise such rights;

…

d. Subject to giving all parties a fair opportunity to make submissions on the relevant points, Convention rights must be considered by the First-tier Tribunal and the Upper Tribunal no matter the stage at which they are raised by the parties (or, in a relevant case, even if they are not raised by the parties) (paragraph 41).

e. The Upper Tribunal is free (and is often obliged) to consider points of law on matters other than human rights law even if they have not been raised before the First-tier Tribunal (paragraph 47).

5. Disability Discrimination Act

dla and dda

CDLA/3585/2007 states that the Disability Discrimination Act (DDA) is irrelevant to DLA because the DDA does not apply to "judicial acts" carried out by decision makers, appeal tribunals and commissioners.

CDLA/936/2004 states that the the tests for DLA are more stringent than those for disability under the DDA but that the DDA does apply in relation to service provision by the Appeals Service - such as ensuring the building is accessible - but redress would not normally be via the DDA.

6. Error of Law

mistake of fact

E v Secretary of State for the Home Department [2004] states "that a mistake of fact giving rise to unfairness can be a mistake of law".

perverse and legitimate decisions

The principles by which perversity in law is to be judged are set out in Yeboah v Crofton [2002] EWCA Civ 794.

CDLA/1456/2002 states that errors in law arise when a “tribunal’s treatment of the factual evidence is so bizarre and irrational as to make the decision “perverse” in the legal sense”. It is not an error of law where two tribunals might legitimately reach differing conclusions as a result of the evidence but it would be if no reasonable tribunal could have reached the conclusion based on the evidence. See also CDLA/3121/2009 [2010] UKUT 239 (AAC).

test for error of law

R(A)1/72 states that there is an error of law if:

1. The decision contains a false statement about the law e.g. they got the law wrong or misinterpreted it.

2. The decision made is supported by no evidence

3. The facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination in question (a perverse decision).

4. There has been a breach of natural justice, i.e. the procedure followed leads to unfairness.

5. The tribunal did not give proper findings of fact or provide adequate reasons for its decision. There must be sufficient reasons so that you can see why it reached the decision it did.

“The minimum requirement must at least be that the claimant, looking at the decision, should be able to discern on the face of it why the evidence has failed to satisfy the authority”

See also R(I)14/75 which states that a decision would be wrong in law if it was in breach of the requirements of natural justice or failed to state adequate reasons.

7. Failure to disclose

actual knowledge

CF/699/2005 concerned a parent's failure to notify her daughter's non-attendance at school.

"Applying the approach set out in CF/14643/1996 and above, the new Tribunal should first ask itself whether the claimant had actual knowledge of S's non-attendance at college, and if so, by what date. If it does not find that the claimant had actual knowledge, it should consider whether the claimant had grounds for suspicion and if so, whether it was reasonable for her to investigate her suspicions by contacting the College. Again it will need to identify the date by which any such grounds for suspicion arose." (Paragraph 28.)

benefit not affected

R v Passmore 2007 states that if change in a person’s circumstances does not affect their entitlement to benefit there is no obligation to disclose. The case concerned a claimant who failed to disclose that he had formed a company, from which he received no income.

R v Nsangu Laku 2008 states that there is no failure to disclose in cases where there was no entitlement to benefit and the undisclosed information has no effect on this.

criminal failure to disclose

Coventry City Council v Vassell [2011] EWHC 1542 (Admin) (17 June 2011) is a High Court decision which considers the test to be applied when deciding whether a criminal offence has been committed under section 112(1A) of the Social Security Administration Act 1992 in a case of failure to disclose.

In summary the claimant would only be guilty of an offence under section 112(1A) if the prosecution prove to the criminal standard [that he or she knows that the change affects a benefit and that her or she fails to give a prompt notification of that change in the prescribed manner to the prescribed person] that he failed to give prompt notification of a change in his circumstances that he knew affected his entitlement to such benefit, to the relevant local authority at the office notified to him on the benefit claim form as the office designated for the receipt of such benefit claims.

Note: Section 112(1A) applies a more severe test than the requirement to disclose under regulations 32(1), (1A) and (1B) of the Claims and Payments Regulations 1987.These require the claimant to furnish information as required and notify of any change of circumstances which he or she might reasonably be expected to know might affect their benefit (See B v the United Kingdom)

Section 112(1A) requires that the claimant knows that a change affects his or her entitlement.

dwp duty to inform

A number of decisions place a duty on the DWP to ensure that the claimant is informed that he or she is under an obligation to disclose relevant information (See B v the United Kingdom). In CIB/3925/2003 a permitted work period was not recoverable because the DWP flyer/letter issued to claimants explaining the, then new, permitted work system was not specific enough and the claimant could not reasonably be expected to know he had a duty to inform. R(IB)4/05 and Hooper v Secretary of State for Work and Pensions (R(IB)4/07) follow this. See also CIB/912/2007 and CIS/2431/2008.

duty to inform the appropriate office

In Hinchy v Secretary of State for Work and Pensions [2005], a House of Lords decision, it was decided that a claimant is under a duty to inform the relevant office where a decision about one benefit may affect entitlement to another, such as in this case where the claimant lost her disability living allowance and failed to inform the income support department. See also CG/969/2009.

Both R(A)2/06 and CG/2786/2008 [2009] UKUT 77 (AAC) discuss situations where the duty to disclose may be modified, such as when someone has informed an office and has good reason to believe that the duty has been met or when a Department already has sufficient information about a change of circumstances.

R(SB)15/87 discusses failure to disclose at the appropriate office. It states that:

"26 …. the obligation is to disclose to a member or members of the staff of an office of the Department handling the transaction giving rise to the expenditure….

28 His duty is best fulfilled by disclosure to the local office where his claim is being handled, either in the claim form or otherwise in terms that make sufficient reference to his claim ….

…there can be other occasions when the duty can be fulfilled by disclosure elsewhere. This can happen, for instance, if an officer in another office of the Department of Health and Social Security or local unemployment benefit office accepts information in circumstances which make it reasonable for the claimant to think the matters disclosed will be passed on to the local office in question.

CH/2567/2007 discusses designated office with regard to local authorities and concludes that the wording of council information concerning change of circumstances was unspecific as to who to inform. Therefore it was reasonable to assume that this applied to the authority as a whole. The claimant informed the Housing Office rather than the Housing Benefit section. The Housing Department should either have passed the relevant information to the Council Tax and Benefit Service, or advised the claimant to do so. Failure to do this was an official error. The claimant was held not to have contributed to this error because of the “proliferation of correspondence” he received and his repeated notification of the relevant facts to the Housing Department. See also R(H)10/08 and CIS/2431/2008.

duty to inform correct method of disclosure

CH/2735/2009 [2010] UKUT 190 (AAC) placed a duty on the local authority to inform a claimant that notifications of a change of circumstances had to be in writing, otherwise the resulting overpayment might be considered the result of official error.

misrepresentation and official error

CDLA/2203/2007 states that even if a decision is flawed (in this case concerning the length of the award), there may still be a "causal link" established by a claimant's original misrepresentation, which would mean that an overpayment could be recoverable for the whole period in question.

CDLA/1173/2009 [2011] UKUT 12 (AAC) states that an assertion that a claimant misrepresented in a claim form requires some evidence of that misrepresentation, not merely that he received benefit to which subsequent findings suggest he was not entitled.

non est factum

Lloyds Bank plc v Waterhouse [1993] sets out the test for non est factum (something that is not the document someone thought it was).

The claimant must be under a disability.
The document must be fundamentally, radically or totally different from the document he thought he was signing.
The claimant must take steps to ascertain the contents of the document.

In CIS/3846/2001 an illiterate claimant got his wife to complete his claim form and she failed to enter her pension details on it. Assuming she had done this he took the form to the DWP who, after briefly checking it, processed the claim, resulting in an overpayment. An argument of non es factum was rejected because the claimant failed to establish that the document was different from the one he thought he was signing. The error could have been remedied by getting his wife to read the contents of the form back to him. The commissioner also held that it was possible for a claimant to "have an innocent misrepresentation by omission" and discusses case law in relation to this.

reasonably to be expected

B v the United Kingdom is a European Court of Human Rights decision which upholds the UK Court of Appeal decision allowing the Secretary of State to recover overpaid benefit where a claimant failed to disclose a material fact whether or not that disclosure was reasonably to be expected. See also CIS/2431/2008 and CH/628/2010 [2010] UKUT 316 (AAC).

In CDLA/540/2008 [2009] UKUT 76 (AAC) a supersession on the ground of a change of circumstances the tribunal erred by ignoring regulation 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999/991), which requires consideration of whether the claimant could reasonably have been expected to know that a change of circumstances should be notified.

CDLA/134/2011 [2011] UKUT 336 (AAC) discusses the point at which a claimant is reasonably to be expected to disclose where a change of circumstances is gradual.

8. Fair hearing

claimant received incorrect information and was refused a postponement

CIB/849/2001* (112/01) was referred back to the tribunal because the claimant was not present at the hearing . The Commissioner felt that the appeal should have failed but that he might be in breach of article 6 of the Human Rights Act if he gave this decision.

domiciliary hearing

CIB/2751/2002 (and CS/3202/2002) states that where a domiciliary hearing is requested the tribunal is under a duty under Article 6(1) of the Human Rights Act 1998 (the right to a fair hearing) to fully consider this. This means the issue should be discussed with the claimant or his or her representative. Where such a hearing is refused it implies that other solutions, such as adjournments for further medical evidence, should be sought. Also raises the question of what constitutes a domiciliary hearing (should it always be in the claimant’s home).

In CDLA/1350/2004 a domiciliary hearing could not be held in the claimant's home because the premises were both too small and unsafe. An alternative hearing was arranged at his doctor's surgery but his representative subsequently telephoned to say that the claimant would not be attending. The appeal failed because no submission was made to the tribunal stating that it was impossible for the claimant to attend this rescheduled hearing.

failure to receive clerk's direction to request an oral hearing

CIB/5227/1999* (34/01) states that it was a breach of natural justice to proceed with a paper hearing.

interpreters

CDLA/2748/2002 states that tribunals must deal with any problems concerning poor standards of interpretation in order to ensure a fair hearing.

CIB/2431/2009 [2010] UKUT 143 (AAC) reaffirms that there is no absolute rule which requires an interpreter to be independent, as opposed to a relative. The First-tier Tribunal Bench Book states that the use of "a relative acting as an interpreter is permissible provided that he understands what is required, i.e. that he should simply translate the questions accurately and relay to the tribunal the answers given by the appellant in his own words without comment or explanation".

CDLA/1503/2012 [2012] UKUT 291 (AAC) holds that the inaccuracy of interpretation at a First Tier Tribunal appeal hearing can be a ground of appeal to the Upper Tribunal.

misreading the date of hearing

CIB/4533/1999* (36/01) states that it is not a breach of natural justice if a claimant misreads the date of hearing and attends on the wrong day or that the claimant's representative was not separately informed of this hearing (it was sufficient that the claimant was informed).

non receipt of notice of hearing

CIB/303/1999* (35/01) states that this constitutes a breach of natural justice.

panel member appears to be asleep

The Court of Appeal in Stansbury v Datapulse plc, [2003] EWCA Civ 1951 held that a hearing may be unfair even if a member of the tribunal only appears not to be awake or alert. See also CDLA/1588/2008.

perceived bias

The test for deciding perceived bias is outlined in Lawal v Northern Spirit Ltd [2003] and Porter v. Magill:

“The principle to be applied [for perceived bias] is that stated in Porter v. Magill, namely whether a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the Tribunal was biased. Concretely, would such an observer consider that it was reasonably possible that the wing member may be subconsciously biased?”

In Lawal the House of Lords decided that if a barrister had previously sat with a member of a Tribunal on only one occasion that would be enough to give rise to a complaint of apparent bias.

Locabail ( UK ) Ltd v. Bayfield Properties Limited [1999] guards against any rigid rule when deciding bias.

“It would be dangerous and futile to attempt to find or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided …”

perceived bias - examining doctor sitting on tribunals

Gillies (AP) (Appellant) v. Secretary of State for Work and Pensions (Respondent) (Scotland) [2006]- reported as R(DLA)5/06 is a decision by the House of Lords which upholds a Scottish Court of Session decision that sees no bias in examining doctors sitting on tribunals.

“Having considered the factual circumstances we are of the view that the fact that Dr. A. carried out examinations and provided reports for the Benefits Agency as an EMP would not be sufficient to raise in the mind of the reasonable and well-informed observer an apprehension as to her impartiality as a member of a disability appeal tribunal. The mere fact that the tribunal would require to consider and assess reports by other doctors who acted as EMPs would not be such as to raise such an apprehension.”

See also the Cunningham decision below. In CSIB/502/2006 the claimant contended that a medical report was incorrect because no examination took place. The commissioner, citing Gillies, thought that there would be an “inherent unlikelihood” of the EMP failing to carry out the medical.

perceived bias - examining doctor who previously sat as a panel member

Secretary of State for Work and Pensions v. a decision of the deputy social security commissioner of 19th february 2003 in application for a disability living allowance by Helen Cunningham - reported as R(DLA)7/04. This is a Scottish Court of Session case that considers the issue of bias of examining medical practitioners (EMPs) who also previously sat as panel members on appeal tribunals.

" If one expert is professionally known to the members, through having sat with them and advised them on how to approach medical evidence, I can see that there is a danger that they will apply their knowledge of him, consciously or unconsciously, to an assessment of the weight to be given to his evidence as against the other reports, where the doctor concerned might not be known to the tribunal."

9. Human Rights

leave to appeal to same chair

CDLA/2259/2000* (55/00) questioned whether, under the Human Rights Act 1998, it was a violation of rights for an application for leave to appeal to have to be made to a chairman who had also made the original decision. Commissioner stated that this practice was authorised under s.14(10)(a) Social Security Act 1998 which may or may not be a violation but the commissioner can only consider errors of law. He or she has no power under s4 of the Human Rights Act to make a declaration of incompatibility.

homeless person's right to the disability premium

R (RJM) v Secretary of State for Work and Pensions [2007] EWCA Civ 614 states that social security regulations, which disentitled a person without accommodation from receiving disability premium, do not discriminate against homeless persons under article 14 of the Convention for the Protection of Human Rights.

linking child benefit to child premium not against Article 8

CIS/4003/2001 discusses Hockenjos v Secretary of State for Social Security [2004] which held that this link was unlawful in the case of jobseeker's allowance but that this does not apply to income support because it is not within the scope of Directive 79/7.

non contributory benefits treated as a possession

In Stec & others v UK (formerly Hepple & others v UK) the Grand Chamber of the European Court of Human Rights (GCECHR) has ruled that non-contributory benefits are 'possessions' for the purposes of Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR).

"Given the variety of funding methods, and the interlocking nature of benefits under most welfare systems, it appears increasingly artificial to hold that only benefits financed by contributions to a specific fund fall within the scope of Article 1 of Protocol No. 1. Moreover, to exclude benefits paid for out of general taxation would be to disregard the fact that many claimants under this latter type of system also contribute to its financing, through the payment of tax."

This supersedes CDLA/3908/2001 which stated that: DLA is not a possession as defined in Human Rights Law.

10. Oral or paper hearing

[Note] Under rule 1(3) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, a hearing means an oral hearing, so that there is technically no hearing when a tribunal decides a case on the papers alone. for convenience this is called a 'paper hearing'.

cases where an award is reduced at a paper hearing

CDLA/4184/2004 states:

“The claimant was appealing against a refusal to award her more than the lower rate of the mobility component of disability living allowance. She appealed asking for a higher award. The tribunal dealt with the matter at a paper hearing and took away her existing entitlement. Regardless of the individual issues and merits of claims, it can never be right for a tribunal to consider reducing an existing entitlement to benefit without giving the claimant proper notice that this is being considered and offering the claimant a chance to be heard or to withdraw the appeal. Accordingly, a tribunal cannot do this at a first paper hearing following the usual paper hearing procedures unless – unusually – the matter has been raised in the written submissions. There was nothing in the papers here, so the tribunal’s procedure was clearly unfair and the decision must be set aside.”

See also CDLA/1480/2006 which covers the same issue.

evidence

CDLA/4225/2002 warns tribunals to "be particularly circumspect in reaching conclusions against a claimant and his consultant's clear evidence on the basis only of a look at the case on paper". The tribunal had ignored a consultant's report that said the claimant needed to use a wheelchair.

overriding claimant's request

CE/841/2010 [2010] UKUT 430 (AAC) discusses situations where a tribunal should consider holding an oral hearing when a claimant has opted for a decision to be made based on the papers alone.

Judge Lane considered situations where a tribunal might override a claimant’s request for a decision to be made based on the papers alone:

“10. What is fair may vary with the jurisdiction of the tribunal concerned. In the Social Entitlement Chamber, where claimants tend to be unrepresented and often disadvantaged in a variety of ways, it may well be necessary for a tribunal to override an appellant’s choice in order to do justice. This may occur, for example, where the tribunal notices (or should have noticed) a material point which could affect the outcome of the case which a layman would not appreciate, or where the tribunal believes the appellant may have evidence whose significance he does not understand. In other types of tribunal where appellants are represented, a less interventionist approach is likely to prevail.”

Guidance on this is contained within rule 2 of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008.

rehearing of paper hearing

CIB/4193/2003 states that claimants should be given the opportunity to request an oral hearing where a case is to be reheard following a paper hearing. The reason advanced in this case was that clerks do not issue fresh directions following a set aside decision.

request by Secretary of State

CDLA/3224/2001 states that a tribunal must hold an oral hearing if the Secretary of State has requested one.

time limits

In CDLA/2818/2009 [2010] UKUT 103 (AAC) there was an error of law because the paper hearing was held too quickly and did not give the claimant time to submit further evidence. Under Rule 24(7) of the Tribunal Procedure Rules the claimant has one month from the date of the tribunal’s receipt of the decision maker’s submission to send in a written submission and additional documents.

CH/1758/2009 [2010] UKUT 461 (AAC), a decision by a three judge panel, concerns out of time appeals where it was argued that a notification decision was defective.

11. Order of precedence of decisions

english, welsh and scottish commissioners decisions have equal weight

R(I)12/75 states this, subject to the following provisions:

Commissioners are bound by the decisions of higher courts.
Where decisions conflict, decisions by a tribunal of commissioners override the decision of a single commissioner.
A reported decision should, prima facie, be given more weight than an unreported decision as they deal with questions of legal principle and command the assent of at least a majority of the Commissioners.
Decision makers must choose between conflicting decisions, by single commissioners. There is no obligation on them to prefer the earlier to the later or vice versa.

precedent on an issue of fact rather than law

CDLA/2288/2007 suggests that there are certain situations where tribunals might be bound by the facts contained within previous caselaw, such as in appeals where previous case law contains evidence from experts which inarguably establishes a fact. The commissioner implies that a tribunal should not challenge this expert interpretation unless it can show that the consensus amongst the experts in the particular field has changed – presumably either by referring to publications in academic literature or specific evidence from another expert. However the commissioner was unwilling to define the limits within which factual precedent should operate.

relevance of english law to northern ireland

C13/03-04(IB)(T) is a decision by a tribunal of commissioners that decided a tribunal was wrong to apply changes made in Great Britain (England, Scotland and Wales) to the “exceptional circumstances” rule following the Howker decision.

relevance of northern ireland case law to england scotland and wales

R(SB)1/90 states that Northern Ireland decisions are not binding on English, Scottish and Welsh decision making but may be persuasive case law in certain circumstances. See also R(IB)4/04 (formerly CIB/2873/2003).

starred decisions

CDLA/2277/2005 states that tribunals should not refer or be referred to decision starred numbers as they have no special status.

status of commissioners in war pensions appeal tribunals (PATs)

R(AF)1/07 (CAF/3326/2005) states that commissioners, having taken over the statutory appeal that previously lay to a nominated judge, can regard previous decisions by nominated judges in the same way as they would the decision of an individual commissioner, without the complication of distinguishing between those decisions which are reported and those which aren't. However in practice a commissioner may accord “great respect to the views of distinguished nominated judges reached after full arguments from counsel” as well as to those decisions which have “been approved many times over the years”.

The decisions of both commissioners and nominated judges remain binding on PATs.

whether a tribunal of commissioners is bound by a decision of a previous tribunal of commissioners

R(U)4/88 suggests that the new tribunal should beware of changing decisions that have established precedent but are not wholly fettered. Follows the principles laid down in the Practice Statement (Judicial Precedent) of the House of Lords (reported at [1966] 1 WLR 1234), and quoted from Chapman v. Goonvean and Rostowrack China Clay Co.,Ltd.,(1973).

12. Postponements, withdrawals and adjournments

adjourned cases and members of the previous tribunal

CDLA/2429/2004 follows R(U)3/88, paragraph 7 of which states:

"As the tribunal is differently constituted from the earlier one, which part heard the case, it would be prudent for none of the members of the earlier tribunal to be included as part of the second tribunal. "

failure to attend hearing

CDLA/5413/1999* (7/00) states that where a claimant has requested an oral hearing but does not attend, the best approach is for a tribunal to adjourn.

CDLA/2156/2010 [2011] UKUT 93 (AAC) refers to rule 31 of the Tribunal Procedure rules which states that when a claimant fails to attend a hearing the Tribunal may proceed if it is in the interests of justice. However in this case the claiamant had also requested an oral hearing and wished for a representative to be present who could not attend on the day in question.

medical evidence

CDLA/6619/1999 says that an adjourned tribunal is not bound by the first tribunal’s opinion regarding the need for medical evidence.

missing documents

CDLA/3680/1997* (59/98) states that the refusal to postpone a hearing is a breach of natural justice if the documents concerning this refusal are not before the tribunal.

personal capability assessment

CIB/16365/1996 is an example of breach of natural justice where the Tribunal should have adjourned the hearing to get advice and further medical evidence.

questions tribunals should consider

CA/1546/2009 [2009] UKUT 211 (AAC) concerns the operation of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) in relation to an application for an adjournment. It sets down three basic questions which tribunals should ask when considering whether to adjourn an appeal. These are:

What would be the benefit of an adjournment?
Why was the party not ready to proceed?
What impact will an adjournment have on the other party and the operation of the tribunal system?

refusal to adjourn or postpone

CIB/2533/2008 states that where a postponement is refused the matter should be raised by the tribunal with the appellant. Regulation 51 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 requires the both a request for a postponement made before a tribunal hearing, and the response to the request, be notified in writing. It also requires that the matter be drawn to the attention of the tribunal by placing before it both the request and the notification of refusal. It is not enough that the decision not to postpone is placed before the tribunal if it has not been notified.

In CDLA/2156/2010 [2011] UKUT 93 (AAC) the tribunal refused to adjourn an appeal hearing. The claimant lived alone and his social contacts were limited to the church of which he is a member. He requested an oral hearing but although he did not specifically request it, his submission, done by the CAB indicated that he wished to attend the hearing with his priest. A hearing was arranged but the priest was not available for that day and the claimant did not attend. The appeal went ahead and was determined on the evidence before the tribunal. The appeal was unsuccessful. Judge Ward held that the tribunal erred by limiting its field of inquiry unduly narrowly by considering only whether it had enough evidence to enable it to reach a reasoned decision bearing in mind the written submission from the CAB.

CDLA/3710/2012 [2013] UKUT 403 (AAC) states that a tribunal’s should offer an adjournment if it is considering removing client’s DLA award.

right to withdraw an appeal

In CDLA/1780/2010 & CDLA/1781/2010 [2011] UKUT 228 (AAC) Judge Mark held that there is “an absolute right to withdraw an appeal only before a hearing. Judge Mark went on to say “Once the hearing commences the absolute right goes and it does not revive just because there is an adjournment, whether for discussions, for lunch or for a more extended period”. The decision is not clear what the position would be if a case was adjourned, and relisted before a differently constituted tribunal.

role of clerk

In CDLA/4389/2004 a claimant requested a postponement in writing. The clerk did not reply to this but instead passed the letter to the tribunal at the hearing where the postponement was refused. This was in breach of regulation 51 of the Social Security (Decisions and Appeals) Regulations 1999. The clerk should have first decided whether to grant a postponement and informed the claimant accordingly in writing. Cites CDLA/4462/2000.

13. Representative's role

champerty

CDLA/1465/2005 discussed the use of champertous arrangements - assisting with an appeal in return for a share of the arrears award. With regard to appeals this was considered acceptable practice and in line with the claimant's right to representation.

exclusion from hearings

CDLA/3965/2001 discusses whether a representative can be excluded from future hearings on the grounds of past behaviour. States that it is arguably illegal to make a general ruling although a ban for behaviour during a specific hearing might be possible.

functions of representative

CIB/2058/2004 identifies three functions for a representative:

Acts as a companion to the claimant and may provide confidence in strange environment.
Assists the tribunal in gathering evidence from the claimant.
May make submissions on the law and may draw issues of evidence, fact or law to the attention of the tribunal.

Cites a 1989 report for the Lord chancellor by Hazel and Yvette Genn on "The Effectiveness of Representation at Tribunals" which states that representation both increases the likelihood of success for a claimant's appeal and increases the accuracy of tribunal decision making. CS/1753/2000* (23/01) states that it is an error of law to seek to restrict someone assisting the claimant to a particular role - friend, representative - from the outset.

help with form filling

CDLA/1564/2004 states that tribunals can also ask claimants what advice they received when completing the claim pack.

representative not present

CIB/1009/2004 states that there is no absolute right of adjournment if a claimant's representative is ill. Decisions on adjournment are a balancing exercise between "the substantial cost of a further hearing and the delay in the determination of another case whose place the adjourned hearing will take".

right to representation

R v Social security Commissioner, ex parte Bibi states that there is no absolute right to representation, but there is an absolute right to be dealt with fairly. See also CIB/4667/2002 which states that a tribunal can proceed if the representative is absent providing the hearing is fairly conducted.

tribunal’s inquisitorial role where the claimant has a representative

CSDLA/336/2000* (5/01) states that if a claimant’s representative fails to pursue a factual issue it is not part of the tribunals inquisitorial duty to remedy this. See also CDLA/1850/2001 (paragraph 6) CSA/993/2002 (paragraph 22) CSIB/160/2000 and C12/01-02(IB)* (149/01).

Both CSDLA/866/2002 (regarding failure to challenge an EMP report) place the onus on the claimant/representative to raise objections, where possible, during a tribunal hearing rather than after the event to a commissioner.

In CSIB/389/1998 the Commissioner held that because the claimant had a representative from a “responsible” Local Authority the tribunal was entitled to rely on that representative to put forward all relevant points.

when representation ceases

CSDLA/2/2001* (109/01) states that representation before appeals must terminate when the tribunal gives its decision. Appeal to the commissioner is a separate process. Case involved a claimant with two sets of representatives, each unaware of the other's involvement.

14. Res Judicata

jurisdiction of tribunal when a subsequent claim for DLA is made

CDLA/1274/1998 states that if a new claim has been made then the tribunal’s jurisdiction ends the day before the date of the new decision - this is the principle of res judicata.

pitfalls of putting in a new claim pending the outcome of an earlier appeal

In CA/2034/2004 the appeal was won but the award ended at the date of the new claim. However benefit was not immediately paid because the decision maker applied the six month test. See also CDLA/114/2004 where it was held that a Tribunal was correct in limiting itself to a decision period that ended when the claimant made a fresh claim.

preventing a decision being reviewed for error of law

In CSDLA/365/2009 [2009] UKUT 185 (AAC) the upper tribunal judge noted that the lower tribunal statement of reasons attempted to pre-empt the tribunal decision being reviewed for error of law under Regulation 40 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Regulations 2008. This decision provides clarification on this practice.

15. Role of decision makers, submission writers, presenting officers and witnesses

duty to cooperate with first tier tribunal

In (DLA) [2010] UKUT 202 (AAC) [2011] AACR 5 (CDLA/636/2010), a decision of a three judge panel, the use of enforcement powers under section 25 of the Tribunals, Courts and Enforcement Act 2007 were considered. These allow the Upper Tribunal to impose penalties (including imprisonment) for refusing to attend a hearing. Upper Tribunal Rule 7 allows this power to be extended to include failure to attend a Lower Tribunal hearing where this is referred to the Upper Tribunal. The tone of the decision implies that tribunals should exercise caution when considering such referrals, weighing carefully whether attendance was really necessary. Tribunals should also give clear instructions about what they require together with a statement on the possible consequences of non-compliance.

"In order to make clear what may happen if the necessary things are not done we think it highly desirable, at the very least, that a statement under rule 16(4)(b) of the SEC Rules [Tribunal Procedure (First-tier Tribunal (Social Entitlement Chamber) Rules 2008] of the consequences of a failure to comply with a summons or citation should spell out the penalties that may be imposed for failure to comply. In England and Wales these include imprisonment, a fine, and sequestration of assets.”

CCS/1487/2009 and CCS/1488/2009 [2010] UKUT 41 (AAC) restate the duty of all parties to ‘co-operate with the Tribunal' and emphasises that where a request for a party to attend is made it should either be complied with or an application should be made to amend, suspend or set aside such a direction.

“The appeal tribunal directed that a presenting officer attend……One was not sent. That was wrong. The tribunal had given a direction and the parties were under a duty to obey it. That duty is now incorporated into the duty on all parties ‘to co-operate with the Tribunal generally' under rule 2(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No 2685). They do so by complying with the direction. If a party is unable to comply or finds it difficult to do so, the proper course is to apply under rule 6(5) for the tribunal to amend, suspend and set aside its direction. A party is not entitled to disregard a direction.“

DMG Memo 13/10 warns decision makers that failure to comply with these rules could result in the first-tier tribunal taking such action as it considers appropriate, which may include striking out the party's case.

evidence

R(SB)10/86 states

" If the statements made by the adjudication officer's representative are contested, as in this case they were, and he does not adduce evidence in support of them or submit himself for questioning no tribunal should accept such statements if unadmitted without such supporting evidence. If the adjudication officer comes to the hearing unprepared to support his statements by evidence they must either decide the appeal on the basis that the facts are unproved or adjourn to give the officer an opportunity of proving them. And where the claimant has been kept waiting they should hesitate to permit a further long wait. The officer can, if he is willing, give oral evidence but if he does he must be prepared to answer questions put to him by the claimant or his representative which bear on his evidence."

R(SB)5/82 advises that where a presenting officer is "retailing statements which other officers of the Commission had given to them" there should be an indication of whether or not the tribunal was prepared to accept "hearsay" evidence should "carefully weigh up its probative value", bearing in mind that the original maker of the statement is not present at the hearing to be questioned on what he actually saw.

CH/3801/2008 [2009] UKUT 27 (AAC) states that the submission writer's statement counts as evidence. If he or she made the decision then the evidence is based on personal knowledge. If not the decision maker could report and explain the contents of other evidence such as computer printouts.

16. Statement of reasons and record of proceedings

additions to the statement at a later date

CSIB/331/2009 outlines the proper procedure to be followed by First-tier Judges when reviewing a decision and subsequently amending a Statement of Reasons.

CIS/1759/2010 [2011] UKUT 28 (AAC) considers whether an earlier statement of reasons can be replaced at a later date. Judge Ward held that this was allowed but only as part of a review under section 9 of the of the Tribunals, Courts and Enforcement Act 2007.

In CE/2444/2010 [2011] UKUT 159 (AAC) considers mistakes altered under rule 36 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. Judge Jacobs holds that the purpose of rule 36 is to correct matters that were in the judge’s mind when writing but for some reason did not find their way onto the page, such as through a typing error that produces the wrong date or a momentary lapse of concentration that results in the word ‘not’ being omitted. In this decision it was held that the omission of nine lines of explanation was not in the same category of mistake as a typing error or a momentary lapse of concentration. This does not however prevent the upper tribunal judge from arriving at a new decision based on the evidence provided by the additional lines. In this case they led the upper tribunal judge to refuse to set aside the decision despite the error of law. CDLA/86/2011 [2011] UKUT 453 (AAC) states that rule 36 does not extend to allowing the First-tier Tribunal to amplify or clarify its reasons.

content of statement

C28/00-01(IB)(T)* (6/01 ) is a decision of a Northern Ireland tribunal of commissioners. It states that it is good practice for tribunals to express findings on all factual matters in writing but it is not a universal requirement (eg where the assessment of evidence clearly indicates the tribunal’s view).

See also CI/1/96 which states that a Tribunal Chair is required to record a statement of reasons for their decision not for findings of fact. See also C32/00-01(IB)* (108/01), another decision of a Northern Ireland tribunal of commissioners which states that in IB cases the tribunal must decide what descriptors apply but is not required to give individual reasons for choosing them. In CDLA/561/2006 & CDLA/1032/2007 the statement of reasons of reasons was considered brief but adequate. The commissioner noted that whilst it may be good practice to provide more detailed reasons but it was not an error of law not to do so.

In CDLA/3093/2007 the tribunal erred, when refusing a request to adjourn, in not recording both the request and reason for refusal in the statement of reasons and record of proceedings.

See also CH/4066/2007 where the tribunal failed to record findings or issue either a statement of reasons or findings.

In CDLA/2235/2009 [2010] UKUT 85 (AAC) the statement of reasons failed to show that it had applied the law correctly in reaching its conclusions, where there was conflicting medical evidence. The upper tribunal judge found the EMP evidecne to be flawed although the tribunal had preferred it. In such a case the tribunal’s statement of reasons needed to give more reasons for its conclusion, weighing the EMP’s expressions of opinion and the other evidence, as a whole.

death of tribunal chair

CJSA/3513/2007 outlines the procedure to follow, where someone wishes to appeal to a commissioner and the tribunal chair dies before a statement of reasons is issued.

delays

CSIS/1009/2002 states that there is no free-standing error in law if a tribunal delays in issuing a statement of reasons. However substantial delay (see para 31) may form part of an infringement of Human Rights under article 6(1).

determinations

Carpenter v Secretary of State for Work and Pensions (2003) (R(IB)6/03) states that a refusal to adjourn an appeal is not a decision, it is a determination. There is no right to a statement of reasons for determinations under reg 53(4) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 as this regulation only applies to decisions. In some cases a refusal to adjourn could amount to an error of law and an unreasoned refusal to adjourn might, “without any recourse to the regulation” be unfair. However, obligation to give reasons for something other than the decision itself “will be relatively summary in nature”.

dissenting tribunal member

CDLA/572/2001* (105/01) reaffirms that there is an error in law if tribunal fails to include a statement of reasons from any dissenting tribunal member (reference reg 53(5) Social Security and Child Support (Decisions and Appeals) Regulations 1999).

See also CIB/382/2005 where the statement of reasons failed to explain adequately why the appeal failed as it contained a conflict of opinion between the two panel members over what to award.

duty to be clear

Wordie Property Co Ltd v Secretary of State for Scotland 1984 states:

"The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it."

17. Transitional Rules

Cases relevant to decisions and issues which predate the current appeals system.

evidence improperly obtained

CDLA/237/1997 states that evidence improperly obtained for the review (revision etc.) of life awards is not “subsequently available” to an appeal tribunal. See also CSDLA/121/1997, CSDLA/181/1999, CDLA/7482/1999* (17/01) and CDLA/5552/1999* (7/01) .

rules in operation at the time of the decision

CIB/213/1999* (59/99) states that rules in operation at the time of the decision are still relevant regardless of any future change. This means that the old rules on decisions, reviews and appeals are still relevant after the changeover date (to revisions, supersessions and appeals) if they applied at the time of the decision and are at issue in an appeal. See also CIB/1442/1999, CDLA/7482/1999* (17/01) and CI/1327/1998.

18. Tribunal function and role of members

adequacy of tribunals’ reasoning on issues of credibility

CIS/4022/2007 states that there is no universal obligation on tribunals to explain assessments of credibility in every instance but that there an obligation on a tribunal to give adequate reasons for its decision. See also CDLA/22/2010 [2010] UKUT 210 (AAC).

duty to consider all types of evidence

CAF/26/2009 [2009] UKUT 170 (AAC) found that the tribunal had erred in failing to consider the claimant's own evidence, the evidence of a television programme, submitted as a DVD and the evidence from two books provided by the claimant.

duty to consider an issue not raised

CDLA/3182/2009 [2010] UKUT 183 (AAC) raises four questions:

First, does a tribunal have jurisdiction to deal with an aspect of an award that was not put in issue between the parties?

Second, if it does, in what circumstances may the tribunal exercise its jurisdiction?

Third, if the tribunal has jurisdiction, subject to what conditions may it exercise it?

Fourth, in what circumstances will there be an error of law in the tribunal’s decision to exercise its jurisdiction?

Judge Jacobs concluded, with regard to the first three questions that:

the tribunal has a discretion to consider issues that are not raised by the appeal;
it does not matter whether the discretion arises under section 12(8)(a) of the Social Security Act 1998 or independently;
the tribunal must exercise the discretion judicially;
the points made in CDLA/884/2008 (see below) are relevant to that exercise
if the tribunal decides to consider other issues, the parties are entitled to a fair hearing;
it is always good practice to explain why the tribunal exercised its discretion;
an explanation may be required as a matter of adequacy of reasons.

With regard to the fourth question there will only be an error if the tribunal approached the issue incorrectly or if its exercise was perverse.

CDLA/884/2008 states

“Where the appeal tribunal has any doubt concerning the validity of the decision under appeal, where that decision incorporates an existing award, it is under a duty to undertake a full investigation of the legitimacy of the existing award and determine whether that award is correct.”

Mongan v Department for Social Development (2005), a Northern Ireland Court of Appeal judgement examines the duty of a tribunal to consider the lower rate of the mobility component when this had not been raised as an issue. The appeal was against commissioner’s decision C21/02-03(DLA). The Court of Appeal found

it was the tribunal's duty to deal with that issue since, if it was not explicitly raised on the appeal, it was certainly apparent from the evidence available to it.
the commissioner erred in law in deciding that even if a claim for lower rate had been presented to the tribunal, an award could not have been made in respect thereof and in concluding that the evidence before the tribunal, taken as a whole, did not give rise to the need to investigate entitlement to the lower rate component.

See also Hooper v Secretary of State for Work and Pensions (R(IB)4/07) and CIB/14442/1996 and CIB/13565/1996.

duty to obtain information

In CTC/2090/2004 the claimant sought to claim child tax credit on the grounds that he was responsible for his child. The tribunal allowed his award. His divorced wife was already in receipt of CTC for the same child. HM Revenue and Customs appealed to the commissioner, arguing that the tribunal should have called the wife as a witness. Commissioner Bano sided with the tribunal.

Citing Kerr v Department for Social Development [2004] it was held that it was up to HM Revenue and Customs (the Board) to obtain information from the claimant's wife. The tribunal was fully entitled to assume that the Board were content for the appeal to be decided without this information when she wasn't contacted.

CAF/26/2009 [2009] UKUT 170 (AAC) cautions tribunals against gathering its own evidence.

evidence

CDLA/878/1994 states that tribunals must have regard to all evidence, whether medical or not. See also CSDLA/169/1994 which states that tribunals should make their own independent findings on the evidence.

findings must relate to the law

In CDLA/3519/2008 the tribunal made several errors of interpretation. These were the tribunal's:

reasoning for rejecting medical evidence (it could accept part of the evidence without accepting the report as a whole)
criticism of the representative's description of the cooking test in a letter meant to obtain medical evidence (there is no requirement for this to be in precise terms though the tribunal should weigh the evidence according to the level of imprecision)
application of its own interpretation of the meaning of slow based on the medical evidence
failure to properly consider the claimant's neck pain in relation to the walking test

The decision emphasises the need to for a tribunal to stick to the law when analysing the evidence and making a decision.

hearing two appeals

CE/2541/2010 [2011] UKUT 224 (AAC) considers whether ESA and DLA appeals can be heard together. Judge Williams holds that where appeals listed in a single session have both a common appellant and a common respondent but require different constitutions, it is possible for the judge and the medical member to hear an ESA appeal either before or after the three members hear a DLA appeal. However in this case there was an error of law because the disability qualified member sat on the ESA panel (she did not take part in the decision on ESA but did take account of all the evidence presented when contributing to the DLA decision) in contravention of the Practice Statement on Composition of tribunals in social security and child support cases in the social entitlement chamber on and after 3 November 2008 (the “Composition Order”).

panel member appears to be asleep

personal capability assessment

CSIB/324/1997 sets out the proper procedure for a Tribunal to adopt on personal capability assessment cases. Should consider and make findings of fact about:

disability from which individual has been proved to suffer.
which activities are adversely affected by these disabilities.
which descriptor in each activity best fits the case according to the evidence.
why an activity is held not to be adversely affected or a particular descriptor preferred where a claimant has contended that an activity is adversely affected or another descriptor applies.

CSIB/23/1996 states that the tribunal must make adequate findings of fact where descriptors are disputed. See also CSIB/459/1997 and CSIB/9/1996.

personal capability assessment exemptions

CIS/3529/2008 states that decisions on exemption can be decided by a one person panel.

plea bargaining with the claimant

In CSDLA/606/2003 the tribunal disregarded the rules of common law justice and the convention of human rights by applying pressure on a claimant. It offered her the high rate mobility component, whilst at the same time expressing doubts about whether she was virtually unable to walk. In return for this concession the claimant agreed not to pursue an application for the care component which meant that it was not considered at all.

questions to appellant

CSIB/377/2003 states that a tribunal is not under a duty to put every inference before the appellant for comment - for example references to the credibility of a claimant's evidence.

role of medical member

R(M)1/93 states that the role of the medical member is to use his or her specialist knowledge to interpret the evidence. CM/527/1992 disagrees with this stating that medical member's ability both as a skilled questioner and to elicit valuable evidence from the claimant puts his or her role beyond that of just interpreting evidence.

role of tribunal

CAF/3558/2008 [2009] UKUT 173 (AAC) [2010] AACR 20.

states that the tribunal "stands in the shoes of the Secretary of State" and it would be an error of law for the tribunal not to make its own findings on any disputed or unclear matter.

"slip of the pen" corrections and late applications for a statement of reasons

CSDLA/168/2008 highlights an anomaly. Regulation 56 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991) is used to correct accidental errors, colloquially known as a slip of the pen.

The time limit for applying for a statement of reasons is normally three months from the date of the sending or giving of a decision but, where a regulation 56 correction is made, regulation 54(1) allows the time limit to restart from the date of correction .

"A situation could therefore arise where a party does not request any statement of reasons until after a correction notice sought, say, some two years after the date of a tribunal hearing; this would seem to trigger a mandatory duty on a chairman to provide such a first statement of reasons, if thereafter requested in time."

In this decision the claimant sought an extension to the time limit for requesting a statement of reasons because the clerk had recorded her as a Miss instead of a Mrs. However, as she had already previously applied for a statement of reasons, and been refused for being out of time, before she applied for a correction under regulation 56 regulation 54(1) did not apply.

CE/2120/2011 [2012] UKUT 98 (AAC) also discusses the parameters of slip of the pen decisions.

specialist knowledge of panel members

R(S)1/94 states that tribunals may draw on the specialist knowledge of panel members. At times the line between using knowledge and imparting evidence will be crossed. This will be erroneous in law if done in secret, “in the confines of the retiring room”, rather than during the hearing. If the knowledge constitutes evidence the claimant must be given the opportunity to comment on it.

Last updated: 17 March 2015

Authors: Ken Butler, Martin Inch and Keith Venables