FN v Secretary of State for Work and Pensions (Tribunal procedure and practice (including UT) : tribunal jurisdiction) [2015] UKUT 670 (AAC) (20 November 2015)

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

A Decision of the Three-Judge Panel of the Upper Tribunal

1. The decision of the First-tier Tribunal dated 22 October 2013 sitting at Glasgow is not in material error of law. Accordingly the appeal to the Upper Tribunal does not succeed.

B The substantive issue arising in this appeal

2. What is the extent of the duties of the First-tier Tribunal when faced with an appeal against an Incapacity Benefit (IB) supersession decision, an Employment and Support Allowance (ESA) supersession decision or an ESA conversion decision where there are materials, such as reports of medical examinations or previous decisions of the First-tier Tribunal, associated with the adjudication process which have not been provided or where there may be such reports but the First-tier Tribunal is not aware of them?

C Background

3. In the written response to the appeal, the Secretary of State submitted that the appellant was awarded Employment and Support Allowance (ESA) from and including 8 April 2010. He also submitted that on 23 October 2012 a decision maker determined that the appellant did not have limited capability for work and, further, made a decision which superseded the decision giving entitlement to ESA and disallowed entitlement to ESA from and including 23 October 2012.

4. An appeal against the decision dated 23 October 2012 was received on 20 November 2012. On 13 February 2013 the decision dated 23 October 2012 was reconsidered but was not changed.

5. The First-tier Tribunal hearing took place on 22 October 2013. The appellant was present and was represented. The First-tier Tribunal disallowed the appeal. In the Decision Notice the First-tier Tribunal noted that:

‘The decision made by the Secretary of State on 23/10/2012 is confirmed.’

6. On 9 December 2013 an application for permission to appeal to the Upper Tribunal (UT) was received. On 16 December 2013 the application for permission to appeal was refused by a First-tier Tribunal Judge.

7. On 13 January 2013 a further application for permission to appeal was received in the office of the Upper Tribunal. On 27 January 2014 an Upper Tribunal Judge gave permission to appeal.

8. On 13 February 2014 another Judge of the Upper Tribunal issued a direction to the Secretary of State requesting a further submission. The judge directed that:

‘… The submission should include information as to the complete adjudication history, and in particular information as to whether the decision of 23 October 2012 was the first decision as to whether the Claimant had limited capability for work in accordance with the work capability assessment , and if not what previous decisions were made, and on what evidence. Copies of the evidence on which any previous decision was made, and in particular a copy of any ESA 85 or similar report prior to that of 28 September 2012, should be attached to the submission if still available.’

9. On 11 March 2014 the Chamber President of the Administrative Appeals Chamber of the Upper Tribunal directed that as the appeal raised issues of general application and importance concerning the scope and extent of the obligation of the Secretary of State to produce previous medical reports, or records of them, in every case, the appeal was to be listed for oral hearing and determination before a Three Judge Panel.

10. The Secretary of State provided a supplementary submission dated 31 March 2014 in response to the direction of 13 February 2014. This proved to be illuminating in regard to the exact adjudication history giving rise to the decision under appeal. In summary, the more accurate adjudication history was as follows:

(i) The appellant was awarded ESA from and including 8 April 2010.

(ii) On 21 June 2010 she was subject to a medical assessment by a healthcare professional. The report of the medical examination (ESA85) and the decision maker’s ‘scoresheet’ in connection with the assessment were available.

(iii) A letter disallowing entitlement to ESA was forwarded to the appellant on 5 July 2010.

(iv) The appellant appealed against the ‘decision’ disallowing entitlement to ESA. Her appeal was successful and she placed in the work related activity group from and including 11 July 2010.

(v) On 10 October 2011 the appellant was subject to another medical assessment by a healthcare professional. The report of the medical examination (ESA85) and the decision maker’s ‘scoresheet’ in connection with the assessment were available.

(vi) A letter disallowing entitlement to ESA was forwarded to the appellant on 31 October 2011.

(vii) The appellant, once again, appealed against the ‘decision’ disallowing entitlement to ESA and was awarded ESA pending the outcome of the appeal.

(viii) Her appeal was successful and she placed in the work related activity group from and including 2 June 2012. She remained in the work related activity group until the disallowance decision of 23 October 2012.

11. The oral hearing of the appeal before us took place on 4 February 2015. The appeal was listed together with another appeal (CSE/435/13) where the issues were parallel. The appellant was represented by Mr Sutherland, instructed by Mr Hodge. The Secretary of State was represented by Mr Webster of Counsel. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

12. At the oral hearing, the Secretary of State agreed to provide an additional submission on several matters which arose during the course of the oral hearing of the appeal. Following the grant of an extension of time, two submissions were subsequently received from the Secretary of State which were then shared with Mr Sutherland. Mr Hodge provided his own response to those submissions on behalf of the appellant.

13. At the oral hearing the Secretary of State was requested to ascertain whether the Decision Notices, ‘scoresheets’ prepared by the First-tier Tribunals, and any statement of reasons for the decisions of the First-tier Tribunals were available for the appeals which were heard in 2011 and 2012. In response the Secretary of State submitted:

‘In relation to the March 2011 decision, the only relevant record the Secretary of State has been able to find is the Decision Notice dated 11 March 2011.

In relation to the May/June 2012 decision, the Secretary of State has been unable to locate a copy of the Decision Notice or other relevant papers. Computer records show that an award was made to (the appellant) on 2.6.12 placing her in the Work Related Activity Group as a result of her successful appeal – however, no other details are noted.’

14. A copy of the Decision Notice for the 2011 appeal was provided by the Secretary of State. The Secretary of State also indicated that he could provide a copy of the screen print showing the 2012 award, if required.

D The submissions of the parties

15. In the skeleton argument which was prepared for the oral hearing of the appeal, Mr Sutherland made reference to the adjudication history, as it was known after that history was revealed following the First-tier Tribunal hearing. He submitted that the both the decision maker and the First-tier Tribunal had failed to correctly identify the decision which was being superseded. He added that while the decision maker relied on the report of the examination conducted by the healthcare professional on 28 September 2012 that report did not did not ‘… relate any of its clinical findings to the descriptors in the revised Schedule 2 of the Employment and Support Allowance Regulations 2008’. Certain of the factual observations contained within the report of the examination conducted by the healthcare professional would not preclude certain of the Schedule 2 descriptors from applying.

16. Mr Sutherland submitted that the appellant’s main ground for appealing to the First-tier Tribunal (though not so expressed) could in the light of the materials before the First-tier Tribunal be inferred to be a submission that her medical condition had not changed over a period of years. That submission was supported by several medical reports. Having set out the relevant principles concerning the common law requirement for natural justice and the applicability of Article 6(1) of the European Convention on Human Rights, Mr Sutherland submitted that the appeal was subject to both tests. Mr Sutherland also set out the relevant legal principles concerning the duty to give reasons.

17. Mr Sutherland made reference to rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (‘the TPR’) and the overriding objective to deal with cases fairly and justly and also rule 24(4)(b) and the duty to provide with the response to an appeal copies of all documents relevant to the case in the decision maker’s possession.

18. Mr Sutherland set out several principles relevant to the decision-making process. The first of these, based on Hinchy v Secretary of State for Work and Pensions ([2005] 1 WLR 967) was that the benefit system was, as he put it ‘… there to ensure that the claimant receives what they were entitled to.’ The second, based on Kerr v Department for Social Development ([2004] 1 WLR 1372), was that the process was inquisitorial and was a ‘fact-gathering exercise. The process is a mutual and co-operative one where the position of the Department is not to be regarded as adverse to the claimant.’

19. Mr Sutherland submitted that the decision of Mr Commissioner Jacobs (as he then was) in CIB/3895/2001 was authority for the principle that:

‘… a tribunal ought to have adjourned a hearing for an earlier medical report to be produced by the Secretary of State where it was being argued that the earlier report would show that a more recent report was incomplete and insufficient.’

20. Mr Sutherland added that it was recognised, in R(S) 1/55, that evidence about the claimant’s state of health at one period of time can be relevant for the purposes of making inferences about their state of health during another period. He submitted that based on the principles set out in CIB/1509/2004, it was not disputed that regulation 6(2)(r)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (‘the 1999 Regulations’), permits a supersession without the requirement for the Secretary of State to establish a change of circumstances. He added that the question of whether a claimant satisfies the conditions of entitlement for a particular benefit at any particular point in time is one of fact and a regulation which authorises a supersession procedure does not of itself alter the nature of that question. Where there has been a supersession of a decision giving entitlement to a benefit, following the receipt of a new report of an examination conducted by a healthcare professional, the underlying question to be determined remains whether at the date of the decision the claimant does, in fact, satisfy the conditions of entitlement.

21. Relying on R(I) 1/71, Mr Sutherland submitted that as in the case of review, the burden of proof of showing that a claimant is no longer entitled to a social security benefit previously received lies with the Secretary of State. The ‘fair hearing’ requirement in an appeal against a supersession decision following receipt of a new healthcare professional report, where the claimant does not accept that the report is a complete and adequate assessment of their condition, means that the history of previous awards in favour of the claimant will be a relevant consideration. He added that whilst a medical opinion may not amount to a change of circumstances, it might be evidence of a change. Further:

‘Where a claimant is arguing that their condition remains materially unchanged from the date of the award in their favour, the prior history of the claim and the previous awards in favour of the claim may be relevant documents in considering any supersession decision and any new HCP report which is relied on as the basis for that decision. It will be for the Tribunal itself to consider and assess the relevance of such material on a case by case basis.’

22. Mr Sutherland submitted, in summary, that the First-tier Tribunal ought to have appreciated that the appellant was asserting that there was a ‘continuity’ of her disabilities. The earlier decisions which supported the previous awards were relevant documents which should have been produced by the Secretary of State. Where the appellant was submitting

that her condition had not improved since the date of the previous award, the First-tier Tribunal, as part of the requirement to provide adequate and intelligible reasons, was obliged to consider the previous awards and apply its mind to the appellant’s contention that her condition was no better than when she formerly qualified for the benefit. This was particularly the case where there had been an award made in the appellant’s favour one year earlier.

23. At the oral hearing of the appeal, Mr Sutherland expanded on the submissions which he had made in his skeleton argument. He submitted that the decision of Upper Tribunal Judge Wright in ST v Secretary of State for Work and Pensions ([2012] UKUT 469 (AAC) ‘ST’) was highly relevant. Where a claimant, such as the appellant in the instant case, was asserting that there had been no change in her medical condition since the date of a decision awarding ESA, then the Secretary of State was obliged to provide, as part of the response to the appeal, materials relating to the previous adjudication history, including reports of medical examinations conducted by a healthcare professional or previous favourable decisions of the First-tier Tribunal. Where the Secretary of State failed in his duty to provide such materials, in such circumstances, or where the previous adjudication was only revealed at the hearing stage, the First-tier Tribunal had to be proactive in seeking them. Determining the relevance of, and weight to be attached to, such material was a function of the tribunal and could not be performed without seeing it.

24. In response to questioning, however, Mr Sutherland accepted that there were limits to the above. In particular, he agreed that if a First-tier Tribunal did not accept a claimant’s assertion that there had been no change, that might justify a tribunal’s decision not to call for an earlier report.

25. As to whether there might be circumstances other than an assertion of “no change” such as to trigger a duty to call for previous reports, he accepted that unless there was something in the prior history i.e. by way of a submission of no change from a previous report favourable to a claimant’s claim or for some other reason which made the conclusion of the latest report questionable, that was the end of the matter so far as any duty to call for previous reports was concerned.

26. When asked whether there was a duty on a tribunal, faced with a submission such as the one in the present case to ask a claimant whether he or she had ever been examined before, Mr Sutherland’s submission was that the inquisitorial functions of the tribunal did indeed require this.

27. In the skeleton argument which was prepared for the oral hearing of the appeal, Mr Webster, for the Secretary of State, set out what was submitted to be the key differences between three classes of case – supersession ‘generally’, supersession in ESA cases and conversion. In relation to supersession ‘generally’ Mr Webster made reference to the relevant legislative provisions, namely section 10(1) of the Social Security Act 1998 (‘the 1998 Act’) and Regulation 6(2)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (‘the 1999 Regulations’). He submitted that:

‘The content of prior medical reports may have potential relevance in supersession cases before the Secretary of State and in the First-tier Tribunal where the supersession decision proceeds on a change of circumstances’ (actual or anticipated) since the date of the original decision had effect (or in some cases, was made).

28. In relation to the second category of case Mr Webster noted that specific provision is made in Regulation 6(2)(r) of the 1999 Regulations in respect of supersession in ESA cases noting:

‘Thus, whilst supersession may proceed on a change of circumstances generally, in ESA cases, once an ESA decision has been taken, there is no need to demonstrate a change of circumstances to supersede that decision: the receipt of medical evidence alone is sufficient to permit supersession.’

29. Finally, Mr Webster submitted that a conversion cases does not entail a consideration of a change of circumstances:

‘Conversion entails a determination of whether there is an entitlement to employment and support allowance on the basis that it has been determined that the claimant has limited capability for work or is to be treated so under and in terms of the Welfare Reform Act 2007 and the regulations made thereunder relating to ESA; Existing Awards Regulations[1], reg 7.

If on determination a person in respect to whom a conversion decision is determined not to qualify for ESA the existing award of benefit terminates; Existing Awards Regulations, reg 15(2).’

30. Mr Webster made reference to paragraphs 37 and 39 of the decision of Judge Wright in ST, noting that this was an ESA supersession decision. He also referred to the decision of Upper Tribunal Judge May QC in AM v Secretary of State ([2013] UKUT 458 (AAC), ‘AM’) noting that that was a conversion decision. He submitted that Judge May QC had expressed reservations as to the analysis in ST, being of the opinion that while personal capability assessments (‘PCAs’ prepared for the purpose of assessment of entitlement to IB) may be relevant to a conversion decision, non-production of the same was not fatal in law.

31. Mr Webster submitted that the Secretary of State accepted that PCAs might be relevant to conversion decisions but that, in reality, they were unlikely to be material:

‘The process of assessment in a CWA [capability for work assessment] or a PCA may entail the ascertainment and recording of facts as to an individual’s physical abilities and that may be relevant in an assessment of credibility at a later date. However, the circumstances in which earlier reports will amount to material evidence are, it is submitted, vanishingly thin. PCAs will have been conducted, and observations made, against different criteria. The statutory tests for ESA will not have been addressed; nor would they have been in the mind of the author(s) of the report(s). The report(s) (if any) are likely to be aged. They would fall to be considered against more contemporaneous CWAs in an assessment which does not entail demonstrating a change of circumstances. They would fall to be considered against the Tribunal’s own contemporaneous observations of the claimant. Evidentially, they are likely to carry very little or no weight.’

32. Mr Webster then turned to the question of whether earlier reports should always be produced. He submitted that the decision in ST did not require capability for work assessments (CWAs) to be produced in every appeal against an ESA supersession decision. They would only be required to be produced where (i) there was a clear submission on behalf of the appellant that there had been no relevant change (or an adverse change) in condition since the appellant was awarded an entitlement to ESA or was last subject to a limited capability for work assessment and (ii) there had been no relevant supervening event such as a change in the law or, for example, a successful medical operation.

33. Mr Webster submitted that Judge May QC, in AM, had accepted the potential relevance of PCAs in appeals against conversion decisions, but did not necessitate production unless the earlier assessment(s) was or were either relevantly put in issue by the appellant (as determined by the First-tier Tribunal) or identified as relevant by the First-tier Tribunal. Mr Webster submitted that the Secretary of State was of the view that the approach of Judge May QC was correct and was equally applicable to the production of earlier CWAs in ESA supersession appeals.

34. He submitted that the decision in ST failed to distinguish between potential relevance and actual relevance and likely value. It also failed to have regard to the First-tier Tribunal’s inquisitorial role. The alternative approach of Judge May QC was:

‘… a pragmatic and proportionate settlement of the obligation of the Secretary of State to provide earlier CWAs and PCAs in any appeal, whilst at the same time recognising the ability of the claimant, or the Tribunal, to call for the same if the circumstances demonstrate likely value in so doing.’

35. In relation to the instant case, Mr Webster submitted that:

‘Before the First-tier Tribunal the grounds of appeal did not rely on a comparison against her condition at the date of an earlier award. The appellant also accepts that the absence of prior reports was not raised in the oral hearing before the First-tier Tribunal. The Tribunal found the appellant not to be credible or reliable; and instead placed reliance on recent medical reports produced by the claimant when refusing the appeal.

Failure to produce earlier reports not, of itself being an error of law and no reliance having been placed by the appellant on earlier reports, the First-tier Tribunal was entitled to proceed as it did.’

36. At the oral hearing of the appeal, Mr Webster expanded on the submissions which he had made in his skeleton argument. In connection with the principles in JC v Department for Social Development (IB) ([2014] AACR 30, [2011 NICom 177, ‘JC’), Mr Webster submitted that he was not advocating that past material would never be relevant but, equally, he was not accepting that it required to be produced in every case. The Secretary of State’s concern had been characterised by the Tribunal of Commissioners in JC in paragraph 52 of its decision although, equally, he could see the value of what the Tribunal had said at paragraph 51, albeit he would need to take instructions upon it – paragraphs 51 and 52 of JC are set out at paragraph 41 below.

37. There was a consistency between the decisions in JC, ST and AM that not everything had to be produced. There was a rider in ST at paragraph 37. The rider was that where there was an assertion of no change there would be an expectation of production. If that was the test, however, it would be of concern to the Secretary of State. There might be the production of material which might be of no assistance whatsoever. The Tribunal of Commissioners, in paragraph 52 of the decision in JC, stated that it was not enough to say that there had been no change. There was another question which was ‘Will the material be relevant?’ Accordingly, in contrast to the test in ST, there was a rider which had been set out in paragraph 50 (vii). It was a two-stage test – are the previous reports sufficiently relevant to justify their production. The production of everything in every case cannot be right. The circumstances in which there would be a requirement to call for previous reports would be few and far between.

E The relevant jurisprudence

38. In JC the Tribunal of Commissioners in Northern Ireland were considering an appeal from a decision of an appeal tribunal which had upheld a decision of the Department of Social Development and which, in turn, had decided that the appellant did not satisfy the personal capability assessment (PCA), superseded an earlier decision of an appeal tribunal and disallowed the award of incapacity credits which that appeal tribunal had made. The supersession was made under regulation 6(2)(g) of the 1999 Regulations. It is important to note that the 1999 Regulations are the substantive procedural regulations for appeal tribunals in Northern Ireland and do not contain an equivalent to rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (‘TPR’).

39. The Tribunal of Commissioners concluded that the purpose of regulation 6(2)(g) was to provide that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession of an IB decision. Accordingly, there was no requirement to identify a regulation 6(2)(a)(i) change of circumstances in order to supersede such a decision. In light of that preliminary analysis, the Tribunal went on to explore the circumstances in which an appeal tribunal was obliged to consider the reports of examinations conducted in connection with previous PCAs as part of the adjudication history giving rise to the decision under appeal.

40. The Tribunal of Commissioners summarised its analysis in paragraph 50 of its decision, as follows:

‘50. The implications of the introduction of the Great Britain equivalent of regulation 6(2)(g) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999 and, more particularly, the effect of the introduction of that provision on the requirement to consider previous adjudication history, have been considered by the Social Security Commissioners in Great Britain in a number of well-analysed and thorough decisions. From those decisions we derive and accept the following principles:

(i) there was a clear purpose to the introduction of regulation 6(2)(g) of the Social Security (Decisions and Appeals) Regulations (Northern Ireland) 1999, which was to provide that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession;

(ii) accordingly, there is no requirement to identify a regulation 6(2)(a)(i) change of circumstances in order to supersede an IB decision;

(iii) there is a difference between the evidential requirement to determine the ground for supersession and the evidential requirement to establish whether an individual is incapable of work in connection with the all work test or personal capability assessment;

(iv) it is no longer[2] necessary as a matter of law for an appeal tribunal to have before it and to consider the evidence of the claimant’s previous assessments in connection with the all work test or personal capability assessment;

(v) an appeal tribunal is entitled to call for whatever evidence it considers to be relevant to the proper determination of the issues arising in an appeal;

(vi) the requirement for an appeal tribunal to consider the evidence associated with previous favourable assessments in connection with the all work test or personal capability assessment depends entirely on the relevance of the earlier assessments to the determination of the claimant’s incapacity for work at the date of the supersession decision;

(vii) an appeal tribunal will be required to consider the evidence associated with previous favourable assessments where an appellant asserts that there has been no change in his medical condition or disablement and that the evidence associated with previous assessments is relevant to that continuing medical condition or disablement. In such circumstances the last previous assessment is likely to be of more relevance than earlier ones and the relevance of any particular assessment is likely to diminish with the passage of time;

(viii) details of the basis of the claimant’s previous assessments in connection with the all work test or personal capability assessment may be relevant evidence of the claimant’s overall capacity, particularly where the claimant has a variable condition. Variability may increase the relevance of older assessments carried out before the last previous assessment;

(ix) details of the basis of the claimant’s previous assessments in connection with the all work test or personal capability assessment may be of no relevance in a case, for example, where there is evidence that the claimant’s condition has changed in a way that renders the details of the earlier assessment irrelevant;

(x) where the evidence associated with a previous favourable assessment in connection with the all work test or personal capability assessment is no longer available, it does not follow that the award of entitlement to benefit or credits, based on that favourable assessment, should automatically continue, simply because a comparison cannot be made. The appeal tribunal must reach a decision based on whatever evidence is available to it;

(xi) the value of the evidence associated with a previous favourable assessment in connection with the all work test or personal capability assessment may be minimal. This may be the case where an appeal tribunal has replaced a decision of the Department with its own decision, and there are no relevant findings in fact or reasons for the appeal tribunal’s decision because the success of the appeal obviated the requirement to call for these;

(xii) an appeal tribunal may call for evidence associated with a previous unfavourable assessment in connection with the all work test or personal capability assessment. It follows that where evidence of previous assessments is of relevance in cases, for example, where the claimant’s condition is variable, the evidence may assist in determining the claimant’s overall capacity.’

41. The Tribunal of Commissioners, in paragraphs 51 to 53 of its decision considered some of the practical consequences of the principles set out in paragraph 50, as follows (emphasis added):

‘51. We realise, as did Miss Commissioner Fellner in CIB/1972/2000 and CIB/3667/2000 that there are practical implications arising from the principles which we have set out above. Following a request to that effect, the Department has confirmed to us, however, that “… it should be straightforward in most cases to list details of all previous PCA determinations within a current claim from computer records”. We recommend that this course of action is adopted. We have noted that appeal submissions for appeals concerning disability living allowance routinely contain information concerning previous adjudication history in connection with the claimant and we advocate the adoption of a similar practice in appeal submissions for appeals concerning IB, and its successor benefit, employment and support allowance.

52. The Department has baulked somewhat at the idea that the paperwork associated with previous determinations in connection with the all work test or personal capability assessment may have to be made available. We allay those fears, as follows. While recommending that details of the previous adjudication history are set out in the appeal submission, we do not assert that the associated paperwork is made available in each case. The previous adjudication history will not be relevant in every appeal concerning IB. As set out above, the previous adjudication history will become relevant where the appeal tribunal determines that to be so. That will be, in our view, in a limited class of case, where there is an assertion that there has been no change in the claimant’s condition, and where the evidence associated with the previous adjudication history is relevant to that submission or, for example, where the claimant’s medical condition, and the evidence associated with the previous adjudication history assists in the assessment of the claimant’s overall capacity.

53. We would note, however, as did Mr Commissioner Williams in CIB/378/2001 that the practical difficulties associated with the location and provision of paperwork should not be permitted to thwart the appeal tribunal’s requirement to have before it evidence which is relevant to the issues arising in the appeal. There are also duties, however, for appellants and their representatives. Appeal tribunals should not be overwhelmed with submissions that there has been no change in the appellant’s medical condition and that, accordingly, the evidence associated with previous determinations in connection with the all work test or personal capability assessment should be produced. As was noted above, it will only be in a limited class of case where the previous adjudication history will be relevant. In any event, the relevance of the previous adjudication history will ultimately be a matter for the appeal tribunal to determine.

42. In ST, Judge Wright identified the following, as the issue arising in the appeal:

‘… whether there is a breach of natural justice and the appellant’s right to a fair hearing enshrined in article 6(1) of the European Convention on Human Rights (“the Convention”) when a previous ESA85 medical report was not put before the First-tier Tribunal considering an appeal from a Secretary of State’s decision that arises from a subsequent ESA85 medical report concerning the same claimant. In addition, may such a breach arise even if the appellant had the previous ESA85 medical report but did not put it before the First-tier Tribunal?’

43. The judge began his substantive analysis by examining the role of the Secretary of State. In paragraph 23 he stated:

‘The role of the Secretary of State’s decision makers in this assessment process, both at the initial decision making stage and on appeal, is therefore not one where the decision maker is adverse to the claimant/appellant, but is rather one where he or she is assisting, as far as the decision maker can, in deciding the correct level of benefit for the claimant or appellant. And, crucially for present purposes, that will include providing information which the Secretary of State holds.’

44. In support of this reference was made to the decision of the House of Lords in Kerr –v- Department of Social Development ([2004] UKHL 23, R 1/04(SF)). The judge thought that this perspective on the role of the Secretary of State was given ‘added force and focus’ when one considered the requirements of First-tier Tribunal’s procedural rules. He referred to section 22(4) of the Tribunals, Courts and Enforcement Act 2007 and rule 24(4)(b) of the TPR which provides:

‘The decision maker must provide with the response …. copies of all documents relevant to the case in the decision maker’s possession, unless a practice direction or direction states otherwise.’

45. In paragraphs 25 and 26, Judge Wright concluded that:

’25. The key word here is “relevant”. The use of the word “must” also makes clear that the Secretary of State’s decision maker is under a legal obligation to provide the Fist-tier Tribunal with copies of all documents relevant to the case that he has in his possession: an obligation that is not on its face cut down by consideration of what the appellant might have in his or her possession and be able to put before the tribunal …

26. So, as far as I can see, the Secretary of State’s decision maker is obliged to provide the tribunal with all relevant documents in his possession, or at least explain to the tribunal which documents are not in his possession and why they are not.

46. The judge then made reference to regulation 6(2)(r)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 which permits the supersession of an ESA decision where ‘… since the decision was made the Secretary of State has received medical evidence from a health care professional approved by the Secretary of State.’ He noted, as did the Tribunal of Commissioners in JC, that the introduction of regulation 6(2)(r)(i) means that there is there is no requirement to identify a regulation 6(2)(a)(i) change of circumstances in order to supersede an ESA decision.

47. The judge doubted, however, any proposition that ‘mere receipt’ of medical evidence from a health care professional, in the form of a report of medical examination (in his case an ‘ESA85’ medical report), established the grounds for superseding an earlier limited capability for work decision. The outcome decision made by the Secretary of State is whether or not the claimant is entitled to ESA on the basis of whether he or she has limited capability for work:

‘That question can only be answered, in my judgment, by considering the contents of the ESA85 medical report and all other relevant evidence so as to decide whether on the facts and the law the person has “limited capability for work”.’ (paragraph 35)

48. In the view of Judge Wright, receipt of medical evidence from a health care professional was a necessary condition for supersession but was not also the ‘sufficient condition’:

‘That depends upon the decision maker going further and saying why the contents of the ESA 85 medical report, whether taken with or in preference to other relevant evidence, establish on the facts and under the ESA legal rules (usually Schedule 2 to the Employment and Support Allowance Regulations 2008) that the person does not have limited capability for work’ (paragraph 36)

49. The judge thought that the medical evidence received by the Secretary of State from the healthcare professional could not be the only relevant evidence:

‘What other evidence is relevant will depend on the facts of each case. However, where, as here, it is plain from what is being said by or on behalf of the claimant that she is no better (and maybe even worse) since she was last awarded ESA or was last subject to a limited capability for work assessment, and where (as here) there has been no relevant supervening event such as a change in the law or a successful medical operation, I cannot see any lawful basis for the Secretary of State or his decision makers denying to the First-tier Tribunal the previous ESA85 medical reports concerning the appellant (or at least the knowledge that such existed, and the ESA decision(s) made subsequent to them, if they are lost and no longer in his possession).’ (paragraph 37)

50. Judge Wright recognised, however, that a line needed to be drawn. The Secretary of State did not have to provide to the First-tier Tribunal all of the documents which he held in relation to a particular appellant. What was key were documents which were relevant and it was for the Secretary of State to decide what was relevant:

‘… it seems to me that the Secretary of State and his decision makers ought in all appeal responses to at least refer the First-tier Tribunal to all the documentary evidence in the Secretary of State decision maker’s possession that he considers may be relevant, whilst always providing that tribunal with copies of previous ESA85 medical reports (if still in the Secretary of State’s possession) in the circumstances referred to in the closing sentence in paragraph 37 above.’ (paragraph 39)

51. The circumstances referred to in the final sentence of paragraph 37 where the claimant was submitting that there had been no change in circumstances (or an adverse change of circumstances) since the last award of entitlement to ESA and no relevant supervening event.

52. On the facts of the case before him, the judge found that there was no good evidence that the appellant had been provided with a copy of a relevant ESA85 medical report at the time of the making of her appeal to the First-tier Tribunal or at the hearing of her appeal. Accordingly, the ‘clear and important duty imposed by rule 24(4)(b) of the TPR had not been obviated. This meant that:

‘Accordingly, the breach of that duty by the Secretary of State’s decision-maker means that the decision arrived at by the First-tier Tribunal was erroneous in point of law.’

53. It is to be noted that Judge Wright did not consider the decision of the Tribunal of Commissioners in JC, although it is not clear whether he was aware of that decision.

54. The decision in ST was considered by Judge May QC in AM, although, once again, and for reasons which are unknown, he did not address the decision in JC. In AM, the judge was considering an appeal against a decision of the First-tier Tribunal which affirmed a decision of the Department which, in turn, had determined that an existing award of incapacity credits did not qualify for conversion to an award of employment and support allowance and that the entitlement to incapacity credits should cease. It was, therefore, an ‘ESA conversion’ decision.

55. The Secretary of State did not support the appeal to the Upper Tribunal but made a submission, in the following terms:

‘I do not accept the claimant’s argument that the tribunal were required to take into account previous medical reports in relation to his Incapacity Benefit (IB) claim. Recent case law, for example in ST v Secretary of State for Work and Pensions (ESA) [2012] UKUT 469 (AAC), suggests that where the claimant was claiming ESA and the papers relating to an earlier WCA were not placed before the tribunal, it may be an error in law. There were some circumstances fairly unique to the particular case in question, but the UT Judge’s general conclusions on what evidence the Secretary of State should present to a tribunal, as given in paragraphs 38 and 39 of that decision, are binding in all cases.

However, in the instant case the claimant was being reassessed for ESA from a position of being entitled to National Insurance (NI) credits by way of being found incapable of work under the old Incapacity Benefit (IB) scheme. In order to continue receiving NI credits under that scheme, he needed to be found incapable of work under the Personal Capability Assessment (PCA), either by being found to have a specific medical condition which would have automatically allowed him to pass the PCA or passing a medical assessment. However, the ESA Work Capability Assessment is a completely different assessment, based on different descriptors and with a different scoring system, and, whilst the clinical findings and observations made under the PCA may have ongoing significance to, for instance, a stable condition, its relevance overall is limited. It should also be pointed out that PCA reports are becoming increasingly old as PCAs ceased on a widespread basis in 2011. Thus while PCA reports are still available to decision makers and Health Care Professionals do consider such reports at file work or examination, such reports will only be presented to a First-tier Tribunal if their relevance as evidence is considered significant.

As a final point on this issue, I should state that there is an alternative view as to the relevance of IB papers to an ESA claim contained in CE/2796/12, where the Upper Tribunal Judge considers that PCA reports do not assist a tribunal at all and may even impede its reasoning.’

56. Judge May QC was of the view that the intention and purpose of the whole scheme and the legislation was to permit a decision maker, at first instance, and a First-tier Tribunal, should an adverse departmental decision be appealed, to take a ‘fresh look’ as to whether the conditions of entitlement to ESA, or, in appropriate cases, IB credits, are satisfied without the former burden of determining whether there had been a change of circumstances since the award of entitlement to ESA or award of IB credits.

57. Having set out the conclusions of Judge Wright in paragraphs 34 to 36 of his decision in ST, the judge indicated that he had the following reservations about the analysis. Firstly, he was of the view that when the terms of regulation 6(2)(r)(i) were strictly read, it is the receipt of the medical evidence which is the ground for supersession. The judge was of the view that Judge Wright was ‘reading into’ the statutory provisions what he called the ‘sufficient condition’.

58. As was noted above, Judge Wright cited the decision in CIB/1509/2004 as support for his conclusions in paragraph 36 of his decision, including his ‘sufficient condition’ principle. Turning to the decision of Mr Commissioner Jacobs (as he then was) in CIB/1509/2004, Judge May QC cited paragraphs 8 to 10 of the decision, which read as follows:

‘8. There are two ways that a decision-maker can use regulation 6(2)(g). I suspect that the way it works in practice in this. The evidence relevant to the claimant’s capacity for work is collected. This will typically consist of the claimant’s self-assessment, a report from the claimant’s GP and the medical adviser’s report. The evidence is put to the decision-maker, who considers it and decides whether the claimant is still incapable of work. If the claimant is still incapable of work, the decision-maker leaves the award in place and makes no decision on supersession. Regulation 6(2)(g) is irrelevant. But if the claimant is no longer incapable of work, the decision-maker undertakes a supersession. Regulation 6(2)(g) authorises that process. It does not dictate the outcome of the supersession. That is determined by the decision-maker’s analysis of the evidence and the conditions of entitlement.

9. The other possibility is that the evidence is referred to a decision-maker who always undertakes a supersession on the authority of regulation 6(2)(g). If the claimant remains incapable of work, the decision taken is not to supersede the existing award. If the claimant is no longer incapable of work, the decision taken is to terminate that award.

10. On either approach, regulation 6(2)(g) merely authorises a supersession procedure. It does not determine the outcome. It merely recognises that evidence has been produced that may, or may not, show that the operative decision should be replaced. The outcome is determined by the conditions of entitlement for an award.’

59. Mr Commissioner Jacobs was, of course, analysing the effect of regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, which as in JC, provides for supersession in IB cases. Judge May QC thought that the analysis set out by Mr Commissioner Jacobs was:

‘… a pragmatic solution to enable a fresh look at entitlement to incapacity benefit (or credits) or employment and support allowance (or credits) and avoiding the consequence of applying the statutory provisions as they are written. My view is fortified in that regard because paragraphs 8 and 9 of Mr Commissioner Jacob’s decision are expressed as alternatives, thus demonstrating uncertainty as to the proper course … This explanation is important as it explains in supersession cases how the decision maker and in the event of appeal the tribunal is able to look at the merits as to whether the claimant satisfies the conditions.’ (paragraph 11)

60. Judge May QC was not clear whether the submission made by the Secretary of State on the binding nature of the principles in ST applied to conversion cases or was restricted to ESA supersession cases:

‘Whilst I accept in conversion cases that the medical reports used for decision making are related to a different assessment, based on different descriptors, with a different scoring system it is logical that if what the Upper Tribunal Judge says in S T v SSWP is right it would apply to conversion cases as well as supersession under regulation 6(2)(r)(i), though it is quite clear from that authority that the Upper Tribunal Judge is dealing only with supersession cases. The reason for that is that such reports will deal with diagnosis and function. The claimant will also have been clinically examined for the purpose of the report.’ (paragraph 13)

61. Nonetheless, the judge thought that Judge Wright had gone ‘too far’ in:

‘… seeking to impose the obligation on the Secretary of State contained in the last sentence of paragraph 39. I do not consider that in determining an appeal on a point of law from a tribunal in one case it is open to the Upper Tribunal to impose general obligations on the Secretary of State in respect of the provision of evidence in other cases. That seems to me to go way beyond the powers given to the Upper Tribunal in determining appeals by section 12 of the Tribunals, Courts and Enforcement Act 2007. I am further not persuaded if the Secretary of State did not provide such reports to a tribunal that would render that tribunal’s decision erroneous in law if it proceeded to determine an appeal without them. This is particularly so because the intention of supersession under 6(2)(r)(i) is to enable the decision maker to have a fresh look as to whether the conditions are satisfied and in conversion cases to look for the first time as to whether the claimant satisfies the statutory conditions. The absence of previous reports both for the purposes of employment and support allowance and incapacity benefit in my view only becomes an issue if it is asserted by either of the parties or is considered by the tribunal that the content thereof is material to the decision that requires to be made. Absence, and indeed the reasons for their absence, is something that requires to be considered by the tribunal when determining how to proceed. If such reports are before the tribunal then whether they would impede the tribunal as suggested by the Upper Tribunal Judge in CE/2796/2012 in paragraph 10 would be a matter for the tribunal to determine.’ (paragraph 14)

62. The judge was of the view that the approach proposed by Judge Wright had been ‘too prescriptive’ and ran contrary to the intention of the legislative provisions in both supersession and conversion. In the case before him, the First-tier Tribunal had considered that it had sufficient evidence before it to determine the issues arising in the appeal without calling for reports of previous medical examinations. The judge thought that this was a matter for the tribunal and he could find no error in law on the part of the tribunal in proceeding to determine the issues on the basis of the evidence which was before it.

F Analysis

63. As was noted above, the principles set out by the Tribunal of Commissioners in Northern Ireland in JC were summarised in paragraph 50 of the Tribunal’s decision although additional important remarks were made in paragraphs 51 to 53 in connection with the practical consequences of the conclusions which had been reached.

64. We are conscious that the Tribunal of Commissioners in JC was concerned with appeals from decisions made under regulation 6(2)(g) of the 1999 Regulations. Such decisions are IB supersession decisions. As was noted above, the Tribunal of Commissioners thought that there was a clear purpose to the introduction of regulation 6(2)(g) which was to provide that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession. The Tribunal also found that, accordingly, there was no longer a requirement to identify a regulation 6(2)(a)(i) change of circumstances in order to supersede an IB decision.

65. In ST Judge Wright was concerned with an appeal from a decision made under regulation (6)(2)(r)(i) of the 1999 Regulations. Such decisions are ESA supersession decisions. Judge Wright does not find controversial a principle that on its face, regulation 6(2)(r)(i) had done away with the need for the Secretary of State, as initial decision maker, to identify a regulation 6(2)(a)(i) change of circumstances in order to supersede an ESA decision.

66. In AM, Judge May QC was concerned with an appeal from an ESA conversion decision. In his analysis of the effect of regulation 6(2)(r)(i), the judge makes reference to the conclusions of Judge Wright in ST on the manner in which the regulation operates in practice. As was noted above, Judge Wright did not accept any proposition that ‘mere receipt’ of medical evidence from a health care professional, in the form of a report of medical examination (in his case an ‘ESA85’ medical report), established the grounds for superseding an earlier limited capability for work decision.

67. Judge May QC set out the thinking of Mr Commissioner Jacobs in CIB/1509/2004 on the practical operation and application of regulation 6(2)(g) (the parallel ground for supersession in IB cases). As was noted above, Mr Commissioner Jacobs thought that there were two ways in which regulation 6(2)(g) could be used by a decision maker. The first was to collect all of the available evidence, weigh and assess it and determine whether the claimant is still incapable of work. If so, the extant award is kept in place and no decision on supersession is taken. If not, the decision maker undertakes a supersession. The second possibility was that having been referred to the evidence, the decision maker always undertook a supersession either not to supersede or to supersede and remove entitlement.

68. It seems to us that the key finding by Mr Commissioner Jacobs on the practical operation of regulation 6(2)(g) was as set out in paragraph 10 of his decision. To repeat:

‘On either approach, regulation 6(2)(g) merely authorises a supersession procedure. It does not determine the outcome. It merely recognises that evidence has been produced that may, or may not, show that the operative decision should be replaced. The outcome is determined by the conditions of entitlement for an award.’

69. Judge May QC thought that Judge Wright had endorsed and approved the approach set out by Mr Commissioner Jacobs, thereby achieving a pragmatic solution to the practical application of regulation 6(2)(g) and, by implication, regulation 6(2)(r)(i).

70. We accept this analysis and although we are not asked to consider the practical application of regulation 6(2)(g) or 6(2)(r)(i), we re-emphasise that the purpose of both provisions is to provide that the obtaining of a medical report or medical evidence following an examination is in itself a ground for supersession and that, accordingly, there is no longer a requirement to identify a regulation 6(2)(a)(i) change of circumstances in order to supersede an IB or ESA decision. More importantly, however, we accept and endorse what was said by Mr Commissioner Jacobs in paragraph 10 of CIB/1509/2004. What both provisions do is to authorise a supersession procedure but do not determine the outcome. What determines the outcome is a decision by the decision-maker (initially) or the First-tier Tribunal (on appeal), after an assessment of all of the relevant evidence, as to whether the substantive tests (incapacity for work or limited capability for work) are satisfied.

71. We turn to the substantive issue arising in the appeal, that is the extent of the duty on a First-tier Tribunal, when considering an appeal against a regulation 6(2)(g), 6(2)(r)(i), or, as in the instant case, an ESA conversion decision, to call for reports of medical examinations associated with the adjudication history relating to the appellant’s entitlement to IB, including credits, or ESA. We limit the issue to ‘call for’ because it is axiomatic that the First-tier Tribunal is obliged to consider such reports as part of the available evidence if they are before it.

72. In ST, Judge Wright set out, in paragraph 37, certain principles with which we agree. In confirming that the making of a regulation 6(2)(r)(i) decision includes the substantive question of whether a claimant has limited capability for work, depends on weighing the evidence (in the form of an ‘ESA85’ medical report) which was obtained to mandate the supersession process, and all other relevant evidence, the judge has set out principles with which we agree. That conclusion is in keeping with the principles set out in the decision of the Tribunal of Commissioners in JC – see paragraph 50 (vi) and (vii). Judge May QC did not demur from that position in AM.

73. It seems to us, however, that Judge Wright was concerned with the duties on the Secretary of State. As was noted above, in paragraphs 22 to 26 of his decision, the judge set out what he considered to be the role of the Secretary of State in the social security adjudication process. He concluded, on the basis of the relevant authorities, that the function of the adjudication system was to assess correctly a claimant’s benefit entitlement. The Secretary of State’s role is not one which is adverse to the claimant. Rather the Secretary of State is there to assist, and in the process of investigating an individual’s entitlement to benefit, is obliged to provide all relevant information which he holds. Further, rule 24(4)(b) of the TPR obliges the Secretary of State to provide the First-tier Tribunal with all relevant documents in his possession and explain to the First-tier Tribunal which documents are not in his possession and why. As far as this analysis goes, we cannot disagree with it.

74. To repeat, however, the analysis is about the duties of the Secretary of State. We set out below what is our understanding of the response of the Secretary of State to this aspect of the decision in ST. What we are concerned with is the responsibilities of the First-tier Tribunal where the Secretary of State does not fulfil the obligations imposed by Judge Wright in ST, that is does not provide all relevant documents in his possession as part of the response to the appeal or omits to make reference to documents which have the potential to be of relevance. More particularly, we are concerned with the responsibilities of the First-tier Tribunal when faced with an appeal against a regulation 6(2)(g), 6(2)(r)(i), or an ESA conversion decision where there are reports of medical examinations associated with the adjudication process which have not been provided or where there may be such reports but the First-tier Tribunal is not aware of them.

75. In paragraph 37 of his decision, Judge Wright arrived at the following conclusion:

‘… However, where, as here, it is plain from what is being said by or on behalf of the claimant that she is no better (and maybe even worse) since she was last awarded ESA or was last subject to a limited capability for work assessment, and where (as here) there has been no relevant supervening event such as a change in the law or a successful medical operation, I cannot see any lawful basis for the Secretary of State or his decision makers denying to the First-tier Tribunal the previous ESA85 medical reports concerning the appellant (or at least the knowledge that such existed, and the ESA decision(s) made subsequent to them, if they are lost and no longer in his possession).’

76. Once again, we cannot disagree with those conclusions but note that the emphasis is, once again, on the duties and responsibilities of the Secretary of State. In paragraphs 38 to 39 he limits the Secretary of State’s duty to provide ‘… only the documents that are relevant to the decision under appeal that this obligation attaches to.’ It is, in the judge’s view, for the Secretary of State to decide what is relevant but bearing in mind that the tribunal may not know what the Secretary of State has in his possession that may be of relevance.

77. It is only at paragraph 43 of his decision that Judge Wright addresses the consequences for the First-tier Tribunal for any failure by the Secretary of State to provide documentation which was relevant to the decision under appeal to it. He stated:

‘Accordingly, the breach of that duty by the Secretary of State’s decision-maker means that the decision arrived at by the First-tier Tribunal was erroneous in point of law.’

78. If Judge Wright intended that a decision of a First-tier Tribunal would always be in error of law where the Secretary of State fails, in his response to the appeal, to provide documentation in relation to the decision under appeal, where there has been an assertion of no change, then that is a principle with which we cannot agree. In paragraph 14 of AM, Judge May QC doubted whether a First-tier Tribunal would necessarily always err in law in proceeding to determine an appeal in a case where the Secretary of State had not provided all relevant documentation. In JC the Tribunal of Commissioners concluded, in paragraph 50(iv) that it was no longer necessary, as a matter of law, for a tribunal to have before it and consider the evidence of a claimant’s previous assessment in connection with the all work test.

79. We emphasise that a First-tier Tribunal is entitled to call on whatever evidence it considers relevant to the proper determination of the issues arising in the appeal which is before it – see paragraph 50(v) of the decision in JC. It is for the First-tier Tribunal to determine what evidence is relevant to the issues arising in the appeal and whether, accordingly, that evidence should be called for. We can envisage a situation where a First-tier Tribunal considers that it has sufficient relevant evidence before it to determine the issues arising in the appeal without the requirement to call for evidence which is missing because the Secretary of State has failed in his duty to provide it.

80. There are significant practical consequences for the work of a First-tier Tribunal if Judge Wright is correct in stating that its decision will be in error of law if it proceeds to determine an appeal without evidence which the Secretary of State has failed to supply. The temptation will be to adjourn to obtain the evidence in order to avoid error. Our view is that the first choice for the tribunal should not be to adjourn but to get on with the task of determining the issues arising in the appeal when satisfied that it has the necessary relevant evidence before it. It might be the case that having weighed and assessed the appellant’s oral evidence, the tribunal might be satisfied that the evidence is credible, should be accepted and the appeal be allowed. It is our experience that appellants, for the most part, and having waited for their appeal to come to the tribunal, are keen for the tribunal to proceed to determine the appeal.

81. It is also relevant to examine what the consequences are where the Secretary of State has not only failed to provide documentation associated with the adjudication history but also omits to even refer to the existence of such assessments and reports in the response to the appeal. Will a tribunal be obliged to enquire in each and every case about that adjudication history and the possibility of the provision of assessments and reports which might or might not be relevant?

82. It seems to us that the decision in ST should be confined to a description of the duties and responsibilities of the Secretary of State in the preparation of a response to an appeal in an ESA supersession appeal. We agree with Judge May QC in AM, and the Tribunal of Commissioners in JC, that it is not necessary, as a matter of law, for a tribunal to have before it and consider the evidence of a claimant’s previous assessment in connection with the WCA or PCA in each and every case.

83. What, then, is the extent of the duties of the First-tier Tribunal when faced with an appeal against a regulation 6(2)(g), 6(2)(r)(i), or an ESA conversion decision where there are reports of medical examinations associated with the adjudication process which have not been provided or where there may be such reports but the First-tier Tribunal is not aware of them? By way of answer, we accept and endorse the principles set out by the Tribunal of Commissioners in JC. We are conscious, of course, that those principles were set out in the context of an appeal against an IB supersession decision. We have no hesitation in confirming that the principles are equally applicable to appeals against ESA supersession decisions where the issues are parallel. In the instant case the appeal was against an IB conversion decision. We consider that the issues are sufficiently parallel to those which arose in JC to permit the cross-application of the principles in that case. As will be noted below, we place a great emphasis, as a core principle, on the determination by the First-tier Tribunal of the relevance of reports of medical examinations associated with the adjudication process to the issues arising in the appeal. We accept, however, that in an appeal against an IB conversion decision, such as in the instant case, the adjudication history, and associated assessments and reports, with different substantive tests, might not have the same degree of relevance, though there may still be room for argument, depending on for instance, the provision of the IB regulations a claimant was held to have satisfied and the continuing existence – or – not of that or a similar provision in the ESA regulations. For example – and it is only one such example - there is considerable overlap between regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995 and regulation 29 of the Employment and Support Allowance Regulations 2008.

84. We have set out above that a First-tier Tribunal is entitled to call on whatever evidence it considers relevant to the proper determination of the issues arising in the appeal which is before it and that it is for the First-tier Tribunal to determine what evidence is relevant to the issues arising in the appeal and whether, accordingly, that evidence should be called for. To that we add what was said in paragraph 50(vi) to (xii) by way of a description of the relevant principles on the substantive issue arising in this appeal.

85. In paragraph 52 of the decision in JC, the Tribunal of Commissioners concluded that the previous adjudication history, and the documentation associated with such a history would be relevant:

‘… in a limited class of case, where there is an assertion that there has been no change in the claimant’s condition, and where the evidence associated with the previous adjudication history is relevant to that submission or, for example, where the claimant’s medical condition, and the evidence associated with the previous adjudication history assists in the assessment of the claimant’s overall capacity.’

86. Those principles are not out of keeping with what Judge Wright stated in ST, in describing the duties of the Secretary of State in preparing the appeal response. He too limited his analysis to cases where there had been an assertion of no change in the appellant’s condition and where the previous adjudication history was relevant to that assertion. The difference between the decisions in JC and ST lies in the description of the consequences for the tribunal where the Secretary of State fails in his duty to set out the relevant adjudication history and/or provide the documentation associated with that adjudication history. The decision in AM is also consistent with the principles in JC. Indeed it is arguable that the decisions in ST and AM are not inconsistent in their outcomes. The decision under appeal to the First-tier Tribunal in AM was an ESA conversion decision. It is arguable that the adjudication history, and associated assessments and reports, with different substantive tests, might not be as relevant.

G Practical consequences

87. During the course of the oral hearing before us, we asked Mr Webster to outline for us the Secretary of State’s response to the decision of Judge Wright in ST. Mr Webster confirmed that the decision had not been appealed. He also made reference to paragraph 23 of his skeleton argument, where he stated:

‘However it is to be noted that the Secretary of State in guidance to officials requires in second and subsequent decisions as to whether a claimant has limited capacity for work that are appealed to the First-tier Tribunal, in limited and defined circumstances, to provide to the Tribunal in the response, so far as possible the earlier papers (or explain why that cannot be done). Thus the departmental document Submitting appeals to Her Majesty’s Courts and Tribunals Service provides, inter alia:

‘4255 In second or subsequent PCA/LCW cases where there has been an award and there has been no clear change or the appellant says that their condition has not changed or has worsened since that award, the earlier PCA/LCW papers should be included. If they cannot be produced an explanation should be provided. Where storage contractors have destroyed earlier PCA/LCW papers (they are routinely destroyed after 15 months) include this information as part of the explanation.’

88. It seems to us that this is a pragmatic response to the requirements on the Secretary of State set out by Judge Wright in ST.

89. In JC, the Tribunal of Commissioners had been informed by officials from the Department for Social Development in Northern Ireland (DSDNI) that “… it should be straightforward in most cases to list details of all previous PCA determinations within a current claim from computer records”. The Tribunal of Commissioners, in paragraph 51, recommended that this course of action should be adopted. As was noted, the Tribunal of Commissioners allayed the fears of DSDNI officials, who had baulked at the idea that that the paperwork associated with previous determinations in connection with the all work test or personal capability assessment may have to be made available, by concluding that the previous adjudication history would only become relevant in the limited class of case referred to above.

90. In the instant case, we asked Mr Webster to provide an additional written submission on the practical consequences of a recommendation that the Secretary of State in Great Britain routinely includes, in the appeal response, details of a previous adjudication history and an indication as to whether assessments and reports associated with such a history are available for consideration by the First-tier Tribunal. After setting out details of the variety of database systems which are utilised within the Department, Mr Webster submitted that:

‘It is submitted that if this Tribunal is minded to determine that to comply with rule 24(4)(b), TPR more information ought to be produced by the respondent to inform the claimant and the Tribunal of potential existence of potentially relevant material it is submitted that obligation would be met by a short statement of known decisions and referrals from the new DMACR and MSRS interrogation screens, which failing a print out from those screens.’

91. In the written submissions the ‘DMACR’ and ‘MSRS’ systems were described as follows:

‘The main programs that can be accessed by DMs when preparing for an appeal which would provide information on the issue of medical examinations are Decision Making and Appeals Case Recorder (DMACR) and Medical Services Referral System) MSRS.

DMACR is a stand alone system and is used solely to record decisions and is not joined up with other DWP computer systems.

To comply with data protection principles, DMACR only retains information for the preceding 14 months on a rolling basis (reflective of the period in which a claimant may appeal a decision). If within that period there has been a decision following a medical examination, the decision (but not the medical report) ought to be identifiable and readily accessible on DMACR.

On inspection of DMACR, the DM should be able to identify for any claimant a benefit type (e.g. “ESA”), a date of decision and a very short narrative (e.g. WCA-LCW Disallowance Following Med Exam” … The decision itself ought to be capable of being printed off. The report of the medical examination would not.

The reporting to the Tribunal, from DMACR, of the existence of a decision would at least give notice as to the possible existence of a medical examination report within the 14 month period of the database, for the parties to request the Tribunal, or the Tribunal itself, to order production of the decision or the medical report, if available and if considered relevant.

MSRS is essentially a record of medical referrals. DMs can access a screen that lists medical referrals that have been requested … It can identify when a medical examination was requested. For each entry it further permits access to additional information, including the possibility of the drawdown of a PDF of subsequently obtained medical reports if a PDF of the report was made at the time … However not all medical reports are available in PDF format. Further still, MSRS is also a time limited database.

MSRS could, however, be used to identify a summary of medical referrals for the period of the database that would at least identify the possibility of medical reports sought that, if determined to be relevant, a claimant could request and the Tribunal order production of, if available.

The ascertainment of whether there are potentially relevant decisions earlier than the rolling 14 month period covered by DMACR or medical reports not available through MSRS requires DMs to either (a) access an earlier version of DMACR; or (b) recall of the claimant’s file(s) from storage.’

92. Mr Webster submitted that the production of a comprehensive adjudication history beyond the time limited summary information drawn from MSRS as to medical referrals made and any PDF copy reports stored and the time limited summary information provided DMACR as to decisions following medical examinations would be unproductive in terms of additional workload for decision makers and time involved.

93. Mr Hodge’s response to the additional submission and the description of the disparate systems which exist within the Department was to submit that there were aspects of it which were unclear to him. Further, having considered the elements of the Department’s systems he was equally not clear as to why it would take the suggested length of time to go through the file, identify the relevant decisions and provide an adjudication history. He added that he was not sure why data protection principles demanded that the computer records only go back for a period of fourteen months when the hard copy of the file can be stored for a period of five years in the case of ESA and ten years in the case of IB. Finally he submitted that in his experience, in the vast majority of appeals that he had dealt with since CE/829/2012, the previous medical report had always been part of the papers from the outset. Accordingly:

‘it would appear that the Department have been capable of sourcing the report and including it in the papers as a matter of course, and it would seem to me that this is a very sensible approach rather than the expense of numerous Tribunal hearings being adjourned for the provision of such evidence.’

94. It does seem to us that the systems described by Mr Webster are unwieldy and cumbersome. We also find it unusual that there does not appear to be a single electronic database which records the adjudication history relating to an individual claimant. Further it is our understanding that the completion of assessments by healthcare professionals in connection with ESA is undertaken in electronic format. We are unsure why the requirement to have a readily available copy of the report of an assessment undertaken by a healthcare professional is dependent on whether the report was converted to a .pdf format.

95. The decision of Judge Wright imposed requirements on the Secretary of State in connection with the preparation of a response to an appeal against an ESA supersession decision. That aspect of the judge’s decision is binding on the Secretary of State and it is for him to ensure compliance with it. For our purposes, we repeat the recommendation which was made in paragraph 51 of JC, namely that details of the previous adjudication history are set out in the response to the appeal to the extent that this information is available to the Secretary of State. We endorse the comments of Judge Wright in paragraph 23 of ST. In setting out the role of the Secretary of State in the appeal process, he stated:

‘This was described by Baroness Hale in Kerr –v- Department of Social Development [2004] UKHL 23, R 1/04(SF), at paragraph [62] as follows:

“What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced”.

The decision in Kerr turned on whether any of the claimant’s siblings were in receipt of a relevant social security benefit at a particular time - information which only the Department for Social Development held – hence the focus of the language used by Baroness Hale in the last sentence. However, in my judgment the principle in Kerr is wider than this, and is to the effect that in the cooperative process of investigating a person’s entitlement to benefit the Department (or Secretary of State for Work and Pension in this case) is obliged to provide to that investigation all relevant information that it or he holds.’

96. We would also emphasise that there are parallel duties and obligations on the representatives and appellants. Representatives have to be proactive in alerting First-tier Tribunals to evidence which it is submitted is relevant to the issues arising in the appeal and where it is possible to do so to seek that evidence on behalf of appellants. In paragraph 53 of JC, the Tribunal of Commissioners warned that:

‘… Appeal tribunals should not be overwhelmed with submissions that there has been no change in the appellant’s medical condition and that, accordingly, the evidence associated with previous determinations in connection with the all work test or personal capability assessment should be produced.’

97. That guidance remains apposite in the present appeal.

H The application of our substantive analysis in the instant case

98. Mr Sutherland submitted that the tenor of the appellant’s notice of appeal was a submission that there had been no change in her medical condition since the date of the last award of entitlement to ESA. Accordingly, the first condition set out by Judge Wright in paragraph 37 of his decision in ST was triggered. To recall that condition was that:

‘… where, as here, it is plain from what is being said by or on behalf of the claimant that she is no better (and maybe even worse) since she was last awarded ESA or was last subject to a limited capability for work assessment, and where (as here) there has been no relevant supervening event such as a change in the law or a successful medical operation.’

99. Mr Sutherland submitted that the reference by the appellant to additional medical evidence was significant. That medical evidence included correspondence from her General Practitioner (GP) dated 6 September 2013 to which he attached an earlier item of correspondence dated 24 April 2014. In addition, there was a report dated 22 March 2013 from a Clinical Psychologist. It was accepted that both items of correspondence from the GP and the report by the Clinical Psychologist were prepared at the request of the appellant’s solicitors in connection with an asylum hearing.

In the correspondence dated 6 September 2013, the GP states:

‘I enclose a copy of a report I sent to yourselves in 2012 and I can confirm that since that time things haven’t changed very much. She continues to attend with her pain and has developed a recurrent rash on her neck which the dermatologists feel is probably neurodermatitis. I would agree with this absolutely. This is a rash which is really generated by someone persistently scratching and creating an itch-scratch cycle.

…

She has as you will be aware attended the Pain Clinic over a number of years but they have now discharged her as they feel there is nothing much more they can offer him (sic) in a medical review.’

100. In the correspondence dated 24 April 2014 the GP noted that he had been seeing the appellant ‘over the last couple of years’. The GP then set out, in some detail, the specifics of the appellant’s medical conditions and the treatments which she had received.

101. Mr Sutherland submitted that, read together, the notice of appeal and the medical evidence amounted to a submission that there had been no change in the appellant’s medical condition since the date when she was last awarded entitlement to ESA. Accordingly, the first condition is paragraph 37 of ST was triggered. In our view, the notice of appeal and submitted medical evidence were not to be interpreted by the First-tier Tribunal in the manner asserted by Mr Sutherland. The notice of appeal makes no reference whatsoever to a continuity in the appellant’s medical condition.

102. Nor do we think the submission is supported by the evidence. The report from her General Practitioner (GP) dated 6 September 2013 (page 68) saying that “things [hadn’t] changed very much” since an earlier letter of 24 April 2012 (pages 69-70) might show a tendency to chronicity of the appellant’s medical conditions, but on the evidence as a whole, clearly the effects of her conditions were not in fact unchanging from the time of earlier assessments: thus at page 70 “she has also attended physiotherapy and has gained some benefit from this” and she “uses a TENS machine to help her pain with some benefit”. Further, the GP was experimenting with changes of medication in April 2012 which might or might not have effected an improvement in the appellant’s functional conditions by the date of decision (23 October 2012). The evidence certainly does not so powerfully support Mr Sutherland’s submission to us that, even though the point was not taken by the appellant’s then representative (who was not Mr Sutherland), the First-tier Tribunal ought to have inferred for itself that a submission of no change was being made. Further, and for the sake of completeness, we record that while no argument was put to us apart from the one based on the suggestion that the submission was to be understood as one of “no change”, we can discern nothing else in the history of this case which would have triggered a duty to call for previous medical reports either.

103. In any event, we are satisfied that the First-tier Tribunal was aware of the grounds of appeal and the medical evidence which was adduced in support of those grounds. In paragraphs 19 and 20 of the statement of reasons for its decision the First-tier Tribunal undertakes an assessment of that evidence in the context of the issues arising in the appeal. The First-tier Tribunal had all of the scheduled documents and was also able to take oral evidence from the appellant.

104. In our view, the First-tier Tribunal undertook a rigorous and rational assessment of all of the evidence before it. The tribunal gave a sufficient explanation of its assessment of the evidence, explaining why it took the particular view of the evidence which it did. Any conflict in the evidence before the tribunal has been clearly resolved and explained. The tribunal made sufficient findings of fact, relevant to its decision, all of which are wholly sustainable on the evidence, and all of which are supported by relevant evidence. None of the tribunal’s findings are irrational, perverse or immaterial. All issues raised by the appeal, either expressly or apparent from the evidence, were fully examined by the tribunal in conformity with its inquisitorial role. Read as a whole, the statement of reasons for the tribunal’s decision provides a detailed explanation of the basis on which the tribunal arrived at its conclusions on the issues before it.

105. In paragraph 37 of his decision in ST, Judge Wright determined that if the first condition set out by him (assertion of no change since the date of the last award of ESA) was triggered then there could not be:

‘… any lawful basis for the Secretary of State or his decision makers denying to the First-tier Tribunal the previous ESA85 medical reports concerning the appellant (or at least the knowledge that such existed, and the ESA decision(s) made subsequent to them, if they are lost and no longer in his possession).’

106. As we have noted above, the emphasis is on the duties and responsibilities of the Secretary of State. In the instant case, it is now clear that the response to the appeal which had been prepared by the Secretary of State was deficient in failing to identify the adjudication history which occurred between the date of award of entitlement to ESA and the supersession decision dated 23 October 2012. It is arguable that the First-tier Tribunal could not be faulted for omitting to address an adjudication history of which it was not aware and, further, neglecting to call for materials associated with that adjudication history.

107. What would have been the situation if the First-tier Tribunal had been aware of that adjudication history? Would an adjournment to clarify the adjudication history and call for the materials associated with that history have made any significant difference? The answer to that question has to be ‘no’. As was noted above, at the oral hearing of the appeal, we had the benefits of details of the adjudication history. We were told that there had been two medical assessments, two adverse ESA entitlement decisions and two successful appeals against those decisions.

108. When we called for the materials associated with the assessments and, more significantly, the appeals, it was clear that the latter, which were, potentially, the more valuable and advantageous materials for the appellant, we were provided with one First-tier Tribunal Decision Notice, no findings of fact and no statements of reasons. The unavailability of the statements of reasons is unsurprising as the Secretary of State was unlikely to call for a statement of reasons in a successful appeal. The more important point is that as was observed by the Tribunal of Commissioners in paragraph 50 (xi) of JC:

‘… the value of the evidence associated with a previous favourable assessment in connection with the all work test or personal capability assessment may be minimal. This may be the case where an appeal tribunal has replaced a decision of the Department with its own decision, and there are no relevant findings in fact or reasons for the appeal tribunal’s decision because the success of the appeal obviated the requirement to call for these.’

109. The facts of the instant case provide a perfect illustration of that principle.

110. We have noted, in addition, that the Fist-tier Tribunal found the evidence of the appellant to be lacking in credibility and, accordingly, was lacking in weight. In CIS/4022/2007, after analysing a series of authorities on the issue of the assessment of credibility, including R3-01(IB)(T), the Deputy Commissioner (as he then was) summarised, at paragraph 52, as follows:

‘In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows: (1) there is no formal requirement that a claimant's evidence be corroborated – but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant's evidence; (2) equally, there is no obligation on a tribunal simply to accept a claimant's evidence as credible; (3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (e.g. the person's reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness's account may have gaps and discrepancies, not least due to forgetfulness or mental health problems); (4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision; (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted. As the Northern Ireland Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately "the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it".

111. The reasoning of the First-tier Tribunal in the instant case is in keeping with those principles.

I Additional grounds of appeal

112. Before the oral hearing of the appeal Mr Hodge forwarded to the office of the Upper Tribunal, together with the skeleton argument, supplementary grounds of appeal and applied for these to be considered as part of the appeal. When these were forwarded to Ms Cavin she replied to indicate she was seeking a stay on any decision on whether the additional grounds could be admitted, while she consulted with the Secretary of State. There followed additional e-mail correspondence in which it was indicated that ‘… the Secretary of State anticipates being able to deal with the additional grounds of appeal at the oral hearing of the appeal.’ We directed that if a formal ruling on the admission of the additional grounds was required then this could be dealt with as preliminary matter at the oral hearing of the appeal. At the oral hearing, Mr Webster submitted that the Secretary of State had no objection to the admission of the additional grounds. On that basis we agreed to admit them.

113. The first additional ground addressed the First-tier Tribunal’s conclusions on the appropriate descriptor for Activity 1 in Schedule 2 to the Employment and Support Allowance Regulations 2008 (‘the 2008 Regulations’). Mr Sutherland acknowledged that there was a clerical error in the manner in which the First-tier Tribunal had recorded the correct descriptor and that the descriptor chosen by the First-tier Tribunal was 1(e). He submitted that the descriptors 1(a), (c) and (d) required findings in fact as to the distance the appellant was able to walk before requiring to stop. No finding had been made concerning distance.

114. The second additional ground addressed the First-tier Tribunal’s conclusions on the appropriate descriptor for Activity 2 in Schedule 2 to the 2008 Regulations. Mr Sutherland submitted that the evidence which was before the First-tier Tribunal did indicate that periods of sitting and standing did cause significant discomfort. The First-tier Tribunal had not made findings in fact as to the maximum period of time the appellant, was able, for the majority of the time, to stand or sit at one place before needing to move away in order to avoid significant discomfort. The First-tier Tribunal had properly considered and applied the descriptors in Activity 2.

115. The third additional ground addressed the First-tier Tribunal’s conclusions on the appropriate descriptor for Activity 13 in Schedule 2 to the 2008 Regulations. Mr Sutherland submitted that aspects of the appellant’s oral evidence and her behaviour at the oral hearing of the appeal had been interpreted in an adverse manner by the First-tier Tribunal but, equally, was also consistent with someone who had difficulty in undertaking more than one task at a time.

116. The final additional ground was that the First-tier Tribunal had erred in rejecting the evidence of the appellant on the basis that it was ‘largely’ self-reported and there was ‘no clear clinical evidence of a severe condition.’

117. In reply to the first additional ground, Mr Webster submitted that while it was correct to state that the First-tier Tribunal, in the statement of reasons for its decision, had not made a specific finding in fact concerning distance, its rigorous assessment of all of the evidence which was before it, including the appellant’s own evidence concerning her ability to walk for twenty minutes, stop for a minute and then walk again, was consistent with its finding that the appellant did not satisfy any of the ‘scoring’ descriptors’ in Activity 1. Further, the conclusions of the First-tier Tribunal were consistent with the medical evidence which was available to it.

118. In connection with the second additional ground, Mr Webster submitted that findings had been by the First-tier Tribunal and that these could be found in paragraph 13. Further, there was no evidence that the appellant suffered significant discomfort or exhaustion which were key elements of the relevant descriptors. In relation to the third additional ground, Mr Webster submitted that Mr Webster was challenging and disagreeing with the assessment of evidence undertaken by the First-tier Tribunal rather than identifying an error of law. Finally, Mr Webster submitted that the First-tier Tribunal’s conclusions concerning the ‘self-reported’ severity of her back condition had to be viewed in the context of its overall assessment of the evidence as a whole and its key conclusion that the appellant’s evidence lacked credibility.

119. As was noted above, we are wholly satisfied that the First-tier Tribunal undertook a rigorous assessment of all of the evidence which was before it. The assessment of evidence and the fact-finding roles are for the First-tier Tribunal. The fact that an appellant disagrees with the assessment does not render the decision of the First-tier Tribunal as being in error of law. An appeal on a question of law should not be permitted to become a re-hearing or further assessment of the evidence, when that assessment has already been fully and thoroughly undertaken.

120. The conclusions of the First-tier Tribunal in paragraph 22, on the ‘self-reporting’ nature of the appellant’s medical condition should not be read in isolation but must be read in the context of its assessment of the other evidence which was before it. We cannot accept the first additional ground of appeal. When one reads paragraph 21 of the statement of reasons for the First-tier Tribunal’s decision, it is clear why the First-tier Tribunal concluded that the appellant did not satisfy any of the scoring descriptors in Activity 1. We are satisfied that the conclusion that ‘… it could not be said that mobilising was restricted even on a repeated basis to 200 metres or any of the other point scoring descriptors within Activity 1’ is clearly supported by the evidence and the assessment of that evidence. We also agree that sufficient findings have been made in paragraph 13 in connection with activity 2. Finally, we also agree that the additional submission in connection with Activity 13 amounts to a challenge to the assessment of the evidence. The assessment of the potential application of Activity 13, in paragraph 15 of the statement of reasons, is thorough. No error of law has been identified.

J A technical error in the decision of the First-tier Tribunal

121. As was observed above, in its Decision Notice, the First-tier Tribunal stated that it was confirming the decision made by the Secretary of State on 23 October 2012. Paragraph 4 of Section 4 of the response to the appeal prepared by the Secretary of State suggests that the decision dated 23 October 2012 superseded the decision which had originally given entitlement to ESA from and including 8 April 2010. We have already noted that the appeal response failed to identify the adjudication history which occurred between the date of award of entitlement to ESA and the supersession decision dated 23 October 2012. The most immediate adjudication decision pre the decision dated 23 October 2012 was a decision of a First-tier Tribunal in 2012. Accordingly, the decision dated 23 October 2012 ought to have been a supersession of the decision of the First-tier Tribunal in 2012.

122. By failing to identify the decision which was superseded by the decision maker on 23 October 2012, the decision of the First-tier Tribunal was, as Mr Sutherland submitted, “technically” in error of law. We do not regard the error to be material, however. As already noted, the ability to carry out a supersession in this case resulted from receipt of a medical report from a healthcare professional, thus the supersession mechanism itself was not dependent on a comparison of decision A with decision B. Such implications as there are go to questions of weight of evidence. Had it been aware of the history of the award in favour of the appellant, that would certainly have been a matter for the tribunal to consider. However, even with the knowledge that on two occasions a First-tier Tribunal had apparently felt able to take a different view as to the appropriate level of points from that previously recommended by a healthcare professional, on the totality of the evidence we consider that the First-tier Tribunal whose decision is under appeal would have reached exactly the same conclusion and would have done so entirely lawfully. If we are wrong in relation to that, we would have exercised the power given to us by section 12(2)(b)(i) and (ii) of the Tribunals Courts and Enforcement Act 2007 and set aside the decision of the First-tier Tribunal and, adopting its findings, re-made that decision to the same effect.

K Disposal

123. The decision of the First-tier Tribunal dated 22 October 2013 sitting at Glasgow is not in material error of law. Accordingly the appeal to the Upper Tribunal does not succeed.

(Signed)

KENNETH MULLAN

JUDGE OF THE UPPER TRIBUNAL

Date: 5 November 2015

(Signed)

CHRISTOPHER WARD

JUDGE OF THE UPPER TRIBUNAL

Date: 10 November 2015

(Signed)

J T LUNNEY

JUDGE OF THE UPPER TRIBUNAL

Date: 20 November 2015

[1] i.e. the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit (Existing Awards) (No. 2) Regulations 2010 (SI 2010/1907)

[2] i.e. following the introduction of reg 6(2)(g)

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	Upper Tribunal (Administrative Appeals Chamber)
You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> FN v Secretary of State for Work and Pensions (Tribunal procedure and practice (including UT) : tribunal jurisdiction) [2015] UKUT 670 (AAC) (20 November 2015) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2015/670.html Cite as: [2015] UKUT 670 (AAC), [2016] AACR 24

Upper Tribunal (Administrative Appeals Chamber)