CE/3893/2013

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
 Decision
This appeal by the claimant succeeds. Permission to appeal having been given by me on in accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and rule 40(3) of the Tribunals Procedure (Upper Tribunal) Rules 2008 I set aside the decision of the First-tier Tribunal sitting at  Manchester and made on  22 April 2013,  under reference  SC 946/12/11771. I refer the matter to a completely differently constituted panel in the Social Entitlement Chamber of the First-tier Tribunal for a fresh hearing and decision in accordance with the directions given below. 

Reasons
1.	The parties are in agreement that the decision of the tribunal was made in error of law.  The appellant has formally agreed to a decision without reasons.  In the respondent has not made specific observations about that.  In the circumstances my reasons need only to be brief.  The giving of reasons gives me an opportunity to mention a further point which, although it was not raised in argument, is covered by recent authoritative case law, and is a point of procedure which should be noted.

Background
2.	The case concerned employment and support allowance in respect of the appellant, a woman with certain health problems the effect of which if accepted may have led to functional disability in respect of both the mental and physical aspects of the descriptors of the Employment and Support Allowance Regulations 2008. 
3.	The decision was made on to July 2012 that there was no entitlement to ESA from 29 June 2012.  That decision was appealed to the FTT, which heard the case on 22 April 2013.
4.	Before the tribunal was written evidence from the appellant’s GP. It was endorsed on the letter of instruction to the GP from the appellant’s representative at Shelter. That letter was dated 30 July 2012.  It asked certain questions of the GP, and the GP answered them by writing the responses on the letter itself. As part of those answers the GP said that he had last seen the appellant or in 17 January 2013. The tribunal felt that they had to treat the GPs evidence with caution.  That was because they said that it was dated the 30 July 2013, approximately one year after the date of the decision under appeal, and was likely to relate to that time, and not the time which the tribunal was required to consider.
5.	Since the hearing took place on 22 April 2013 it is hard to understand how the FTT came to that conclusion.  It amounts to a material error of fact which was perverse, and I set aside the decision on that ground.
6.	Procedurally where there was a query as to the date, if the tribunal felt that they could not make a finding about that on commonsense principles, they should have made such enquiries as would enable them to find the date that the evidence was likely to have been given, possibly by the clerk to the tribunal making a telephone call to the representative.
7.	I need go no further in my reasons for the setting aside of the decision than that; both parties accept that this was a material error. There are other contentions upon which the parties are not agreed, but which, in view of that finding, I do not need to adjudicate upon.

The procedural error
8.	This occurred as part of the post hearing process.  When considering an application for permission to appeal the District Tribunal Judge directed that the grounds of appeal be sent to the judge who had presided at the tribunal hearing for that judge’s comments.  That resulted in a document consisting of one page, headed “Response to Submission for Leave to Appeal to Upper Tribunal”, under which the judge referred to and answered points made in the submission in five numbered paragraphs.  It amounted to a significant addition to the matters set out in the statement of reasons which had been issued on 5 June 2013.
9.	The DT J then refused to review the decision, on the basis that the statement of reasons was adequate to explain the tribunal’s decision, and refused permission to appeal. He also directed that a copy of the judge’s response should be “forwarded”, which I take to mean sent to the parties.
10.	It is difficult to know whether the refusal to review or grant permission to appeal was made upon the basis of the statement of reasons as originally drafted, or the position given the judge’s response to the various points made in the grounds of appeal.  As a procedural defect this can be corrected by the Upper Tribunal which will consider an application for permission to appeal afresh, however such errors are best avoided at the outset.  In addition the circumstances in which an amendment to a statement of reasons should be sought are extremely limited.  The role of the fee paid presiding judge is complete following the issue of a statement of reasons, save for those rare occasions when a rule 36 “slip of the pen” correction is called for, or in the highly prescribed circumstances discussed below where amendment to the statement of reasons is required.  It is not appropriate as a matter of course for the salaried judge considering post hearing applications to ask the presiding judge to comment upon the grounds of appeal.  To do so may imply the need for justification in the light of those grounds, which is inappropriate both because of the possibility of it leading to a somewhat unseemly exchange of views between the judge and advocate or appellant after the case, and because the decision is at that stage for a salaried judge alone.
11.	The procedures which fall to be considered under the first-tier tribunal procedural rules post hearing are reserved to salaried judges by a Practice Direction of the Senior President of Tribunals on the composition of tribunals. So far as is material it reads as follows
11. The determination of an application for permission to appeal under rule 38 of the 2008 Rules and the exercise of the power of review under section 9 of the Tribunals, Courts and Enforcement Act 2007 must be carried out –
a. where the Judge who constituted or was a member of the Tribunal that  made the decision was a fee-paid Judge, by a Judge who holds or has held salaried judicial office; or
    b. where the Judge who constituted or was a member of the Tribunal that made the decision was a salaried Judge, by that Judge or, if it would be impracticable or cause undue delay, by another salaried Tribunal Judge
12.	The issue of amending statements of reasons, and this was akin to that, was considered by a three-judge panel of Upper Tribunal Judges (Chamber President Charles J; Judge Jacobs; Judge Wright) in JS v Secretary of State for Work and Pensions (DLA) [2013] UKUT 100 (AAC) reported as 92013- AACR 30.      
13.	The issue before the UT was the interpretation and application of section 9(4)(b) of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act), the power of review, which falls under rule 38. The relevant parts of the ratio of the case are set out in the head note which is paraphrased here:
(i) a salaried judge who has decided to review a decision should identify precisely the error of law that justifies the review (paragraphs 33 to 35 and 53); 
(ii) a salaried judge who considers it might be appropriate to amend the reasons of a decision should invite the parties by notice to make suitable representations. The notice should identify any error of law and indicate the course of action proposed so allowing the parties an opportunity to consider whether either an amendment, or an agreed set aside, was appropriate or permissible and whether an amendment might avoid the danger that the reasons would be rewritten (paragraphs 26 to 27 and 54); 
(iii) a salaried judge who invites the presiding judge to provide additional reasons should notify the judge of the error of law that led to the review; only exceptionally should they be sent the application for permission to appeal in order to assist in complying with section 9 (paragraphs 34 to 35 and 55)
14.	In remitting this case for rehearing with the following case management directions, I merely draw attention to these principles for those dealing with post hearing work.

CASE MANAGEMENT DIRECTIONS 

15.	These directions may be supplemented or changed by a District Tribunal Judge giving listing and case management directions. 

16.	The case will be an oral hearing listed before a differently constituted panel.   

17.	The parties shall send to the HMCTS Liverpool office as soon as possible any further relevant written medical or other evidence, if there is any.  If they cannot send that evidence within 2 weeks of the issue of this decision the parties will need to contact that office to let them know that further evidence is expected.  That is not to say that any further medical or other evidence will be necessary.

18.	The appellant must understand that the new tribunal will be looking at her health problems and how they affected her daily activities at the time that the decision under appeal was made, 2 July 2012.  Any further evidence, to be relevant, should shed light on the position at that time.  That is not to suggest that any further evidence is necessary or expected.  

19.	The new panel will make its own findings and decision on all relevant descriptors. They will consider all aspects of the case afresh, but they should note in particular the issues set out I grant of permission to appeal above, and in the submission of the Secretary of State which should accompany this document.

20.	The fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course. 

21.	The clerk to the First-tier tribunal should send to the presiding Judge of the original panel a copy of the original grant of permission to appeal and of this decision and the submissions of the appellant and the Secretary of State and ensure that the same documents are placed in the tribunal bundle for the benefit of the panel that will hear the case.  

PA Gray 
Judge of the Upper Tribunal      

Signed on the original on 31 March 2014