IN THE UPPER TRIBUNAL	Case No.  CDLA/2818/2009
ADMINISTRATIVE APPEALS CHAMBER

1.	This is an appeal by the Claimant against (i) the substantive decision of a First-tier Tribunal made on 24 June 2009 and (ii) (if I had jurisdiction to grant permission for such an appeal) a First-tier Tribunal’s decision of 22 July 2009 refusing to set aside the decision of 24 June 2009 under regulation 37 of the Tribunal Procedure (First-Tier Tribunal)(SEC) Rules 2008 (“the 2008 Rules”). For the reasons set out below I allow appeal (i), set aside the decision of 24 June 2009 as wrong in law and remit the matter for reconsideration by an entirely differently constituted First-tier Tribunal. 

The facts
2.	The Claimant is a woman now aged 43 who suffers from some physical disability to her right wrist, and in addition anxiety and depression, following an assault on her at work in about April 2008. On 6 March 2009 she made a claim for disability living allowance, which was submitted by solicitors on her behalf. The Claimant had signed an authority authorising the Disability and Carers Service to deal with her solicitors on her behalf. The “Statement from someone who knows you” at the end of the form had been completed by the Claimant’s GP in February 2009.  

3.	The claim form, and an IB85 medical examination report dated 8 February 2009 in connection with incapacity benefit, were put before a medical adviser for advice, and as a result of that advice a decision was made on 25 March 2009 refusing the disability living allowance claim. (This was notwithstanding that the doctor who had conducted the incapacity for work examination advised that the Claimant scored points under 11 mental health descriptors). 

4.	On 23 April 2009 the Claimant’s solicitors wrote to the Disability and Carers Service giving notice of appeal against the decision of 25 March 2009, and stating: “we are her appointed representatives and all further correspondence should now be with ourselves ………. We will be collating evidence in support of our client’s appeal to forward to you as soon as possible”.  A further form signed by the Claimant and authorising and requesting the Disability and Carers Service to deal with the solicitors on her behalf was enclosed. 

5.	On 5 May 2009 the solicitors wrote to the Claimant’s GP requesting her to provide additional evidence. The GP replied to the solicitors by letter dated 26 May 2009, setting out additional information in relation to the Claimant’s condition.  

6.	It appears that on 18 June 2009 the Tribunals Service at Newcastle received from the Disability and Carers Service notification of the Claimant’s appeal, and also a written submission on behalf of the Secretary of State and accompanying papers. Those papers included of course the letter of appeal from the Claimant’s solicitors dated 23 April 2009, and also the form of authority which I referred to in para. 4 above. Further, the printed “notification of appeal” form has a box for insertion of the details of the Claimant’s representative, if there is one, and the Disability and Carers Service had entered the solicitors’ details in that box. 

7.	Matters then moved with remarkable speed. On that same day, 18 June 2009, the Tribunals Service (First Tier) sent to the Claimant an Enquiry Form. The Claimant completed and signed it on 22 June 2009. She ticked the box stating that she did not want an oral hearing, and did not complete the box which asked for details of the Claimant’s representative, if she had one. 

8.	According to the date stamp on it the completed Enquiry Form reached the Tribunals Service at Newcastle on 24 June, and on that same day a paper hearing was held, and the appeal was dismissed. 

9.	On 8 July 2009 the Claimant’s solicitors wrote asking for the decision to be set aside. They said: 

“We had advised our client to return the enquiry form via ourselves seeking an oral hearing. Unfortunately our client did not understand the process and returned the form directly saying that she would like the matter to be considered on the papers. Our client was not aware that this meant that there would be no further evidence adduced at the Tribunal hearing including her medical report, which we have obtained nor our written submission.” 

10.	On 22 July 2009 a Decision Notice was issued stating that the decision of 24 June 2009 was not set aside. The Notice set out the terms of Rule 37(1) and (2) of the 2008 Rules and then continued: 

	“The Tribunal finds that none of the above apply.

“[The Claimant] was sent a notice at the outset of the proceedings indicating what would occur. This includes information about decisions being made without a hearing. There was no confusion about the request to have the decision made without a hearing – the notice was completed properly. It is not in the interests of justice to do so. The rules are not designed to allow a “second bite of the cherry.””

11.	The Claimant’s solicitors then on 30 July 2009 requested a statement of the reasons for making both the substantive decision of 24 June 2009 and the decision of 22 July 2009 refusing to set aside. A Statement of the Reasons for the former was sent on 26 September 2009. This indicated that, while the decision not to award any rate of the care component had been unanimous, the decision not to award the lower rate of the mobility component had been a majority one, “one member considering that there was evidence from the GP that [the Claimant] needed guidance or supervision to exercise the faculty of walking out of doors in unfamiliar places most of the time.” 

12.	On 1 October 2009 the Claimant’s solicitors requested permission from the First-tier Tribunal to appeal to the Upper Tribunal against both decisions, but primarily against the refusal to set aside. Their letter included the following:

“We submit that if the Tribunal had considered the matter as an oral hearing, taking evidence from our client and having had sight of all the paperwork including our client’s GP letter, the prospects of our client succeeding in her appeal would have been far greater than simply reconsidering the original evidence from the Disability Benefits Centre.” 

13.	On 8 October 2009 the First-tier Tribunal refused permission to appeal against the decision of 24 June 2009, on the ground that no error of law was identified: 

“The Tribunal was perfectly entitled to proceed with the appeal in the manner as had been requested. The representative had been instructed since at least the time of the enquiry form being returned on 24 June 2009. Not only was a “paper” hearing requested, no reference was made to any representative. Despite being experienced benefit representatives and being instructed by a date as early as 25 May 2009 (the day before the date of the GP letter addressed to the representative) no steps were made by the representative to contact the Tribunals Service. They were able to write to the GP by 25 May 2009 as the GP responded on 26 May 2009. No steps were taken by the representative on receipt of that letter to supply it to the Tribunal. 

There is a duty to cooperate with the Tribunal. This means informing them of their involvement at an early a stage as possible and not leaving matters until late in the day. The Tribunal clearly considered the evidence from the GP supplied in February 2009. It made its decision in the light of that information. The GP in the letter of 26 May 2009 refers to deterioration in the condition since the previous report was written. The decision was issued on 26 March 2009. The latest GP letter was dated 26 May 2009 and provides information about developments since the date of the decision. Consequently the information from the GP is not relevant to the decision under appeal.”

14.	In a further Decision Notice, dated 26 October 2009, refusing to change the refusal to give permission to appeal, the Tribunal stated: 

“An appellant can change their mind about representation at any time. They may have their own reasons for not following advice or instructions from a representative they have at that time. Those reasons are often not sensible and may be wrong. Experience from years in practice is very many clients decide not to follow advice or instructions. These are choices adults make. There are consequences to choices. They may come to regret those choices. It is not the function of the Tribunal to second guess the choices people make. It is not the function of the Tribunal to make choices for the appellant. Appellants are perfectly free to make choices even if they have been clearly advised not to take certain action. 

Rule 2 does not cover the position where an appellant may have made the choice they were advised against. 

In this case the choice was to request the decision be made without a hearing and to state they had no representative. It is very easy to claim that someone made a mistake about the decision not to have a hearing especially when the ultimate outcome is not in their favour. Clear and substantial evidence would be needed to support the contention that at the time the decision about the type of hearing was made (24.6.09) it was done so in error because of their medical condition. That evidence is not available in this case. 

The function of the Tribunal is to make a decision on the evidence available. The Tribunal was entitled to proceed in the manner requested and make a decision on the evidence it had. It was not an error of law to proceed in the manner requested and the decision does not contain an error of law. The submission from the representative only refers to claimed procedural irregularities by proceeding as it did.”

15.	I gave permission to appeal to the Upper Tribunal against the substantive decision of 24 June 2009, and also (if I had jurisdiction to do so) the refusal to set aside dated 22 July 2009. 

Is a decision refusing a set aside under Rule 37 a decision capable of appeal? 
16.	The Secretary of State’s representative submits that the decision of 22 July 2009, refusing to set aside the substantive decision of 24 June 2009, is appealable to the Upper Tribunal (but does not accept that there was any error of law involved in the refusal to set aside). She refers me to the decision of Judge Rowland in Synergy Child Services Ltd v Ofsted [2009] UKUT 125 (AAC), in which it was held that a refusal to re-instate an appeal which had been struck out for failure to comply with a procedural direction was appealable.

17.	I note that it does not appear to have been contemplated by those who framed the 2008 Rules that a refusal to set aside under Rule 37 would be subject to appeal: decisions under Part 4 of the Rules (which includes Rule 37) are expressly exempted from (a) the Tribunal’s obligation in Rule 33 to issue a decision notice setting out the right to apply for a statement of reasons and to appeal and (b) the Tribunal’s obligation in Rule 34 to provide a statement of reasons on request. The fact that it is not contemplated that a statement of reasons need be provided means that the time limit for appealing in rule 38 does not work. On the other hand, there is no provision in the 2008 Rules equivalent to reg. 57A of the former Social Security and Child Support (Decisions and Appeals) Regulations 1999, which expressly provided that “there shall be no appeal against ……. a determination given under regulation 57 [the set aside regulation]”. That may have been because it was considered that, if s.11 of the Tribunals, Courts and Enforcement Act 2007 does confer a right of appeal, it could not be removed. 

18.	In view of the fact that a decision under Rule 37 is not an “excluded decision” for the purposes of s.11(1) of the 2007 Act, the Secretary of State’s concession is very arguably right, and I therefore propose simply to accept it. There would be little purpose in my considering the point more fully, because this decision would still be of little precedential value, given the concession, and given that I have decided (see below) that the decision of 24 June was wrong in law. 

19.	I turn therefore to the question whether either of the decisions against which I gave permission to appeal involved an error of law. 

Was the substantive decision of 24 June 2009 wrong in law? 
20.	In my judgment no error of law was involved in the Tribunal’s reasoning on the substance of the appeal. The Tribunal was entitled on the evidence before it to make the findings of fact which it did, and sufficiently explained the reasons for its decision. 

21.	I have considered whether there was any procedural irregularity or breach of natural justice arising out of the fact that, despite the fact that the Tribunals Service had been informed by the Department, when the appeal submission was forwarded to them, that the Claimant had appointed a representative, the Enquiry Form was sent to the Claimant herself, rather than to the representative. 

22.	By Rule 11(3) of the 2008 Rules the notification by the Claimant’s solicitors to the DWP, at the time of making the appeal, that they were acting for the Claimant, amounted to the appointment by the Claimant of the solicitors as her representative for the purpose of the appeal. When the notification of the appeal was sent by the DWP to the Tribunals Service, the latter were notified that the Claimant had appointed a representative. By Rule 11(6) a person who receives due notice of the appointment of a representative

	“(a)	must provide to the representative any document which is required to 	be provided to the represented party, and need not provide that document to 	the represented party; and 

	(b)	may assume that the representative is and remains authorised as such 	until they receive written notification that this is not so from the representative 	or the represented party.” 

23.	The Tribunals Service would therefore have been justified, under the express terms of Rule 11(6)(b), in sending the Enquiry Form to the solicitors only, but I do not think that there was any procedural irregularity in it being sent (and sent only, it appears) to the Claimant. The Enquiry Form does not appear to have been a document which was required to be provided, within the meaning of Rule 11(3)(a), and so there was strictly no breach of the Rules in it being sent only to the Claimant. Nor do I think that the sending of it to the Claimant, rather than to the solicitors, involved a breach of natural justice. The Claimant of course had the opportunity to complete the Enquiry Form properly, and the fact that a paper hearing took place without her solicitors’ knowledge was caused by the fact that she did not complete it properly. One might nevertheless question whether, in cases where the Tribunals Service is notified by the decision maker, in accordance with the procedure in Rule 11, that a representative has been appointed, it is sensible for the Tribunals Service to send the Enquiry Form to the claimant rather than to the representative. (I have examined the files in a number of other cases, and that does indeed appear to be the general practice of the Tribunals Service.) In many cases where a representative is appointed initially the reason may be that the claimant is hampered in dealing with his or her affairs, and there is therefore the potential for errors of the nature which occurred in this case to result. But it seems to me that the safeguard, if an error which causes unfairness does occur, lies in the power to set aside in Rule 37, and at the end of the day no harm should therefore result. 

24.	However, there was in my judgment a breach of natural justice arising out of the fact that the paper hearing took place so soon after the DWP’s appeal submission and enclosed papers had been sent to the Claimant. It will be recalled that the Tribunals Service received the appeal submission from the DWP on 18 June 2009, and I therefore assume that the Claimant received it on the same date. The hearing took place only 6 days later, on 24 June. Under Rule 24(7) the Claimant was required to provide to the Tribunal any written submission and additional documents, in response to the decision maker’s submission, within 1 month from the date when the decision maker’s submission was sent. The Claimant therefore had until about 18 July to send a written submission and any further documents. 

25.	The Enquiry Form no longer has a question asking whether the claimant intends to send any further evidence, and if so when. Instead, there is simply a note at the end of Question 2, which asks whether an oral hearing is requested, as follows:

	“If you have ticked NO to question 2, we will go ahead on the basis that you 	have no objection to your appeal being decided by the Tribunal in your 	absence. You can still write to us with anything you would like the Tribunal to 	take into consideration, but please do so within the next 14 days.” 

26.	The Tribunals Service therefore has no way of knowing, when the completed Enquiry Form is received, whether the claimant intends to send further evidence or not. But if it goes ahead with a paper hearing before the one month period allowed under Rule 24(7) has elapsed, there is likely to be a breach of natural justice if the claimant could and would have provided further evidence within that period. That was the case here, where the Claimant’s solicitors had further medical evidence ready to send to the Tribunal. Again, if a mishap of that nature occurs, it can easily be corrected by means of a setting aside under Rule 37. 

27.	In my judgment the Tribunal’s substantive decision of 24 June therefore involved an error of law, and must be set aside. 

Was the refusal to set aside wrong in law?
28.	It is therefore strictly unnecessary to consider the appeal against the decision of 22 July 2009, refusing to set aside under Rule 37. However, as the ground on which I have allowed the appeal against the decision of 24 June did not form the basis of my grant of permission to appeal, and has not been considered in the Secretary of State’s submission, I shall go on to consider whether there was any error of law in the refusal to set aside. Rule 37 reads as follows:

	“(1)	The Tribunal may set aside a decision which disposes of proceedings, 	or part of such a decision, and re-make the decision, or the relevant part of it, 	if – 

		(a)	the Tribunal considers that it is in the interests of justice to do so; 			and

		(b)	one or more of the conditions in paragraph (2) are satisfied.

	(2)	The conditions are – 

		(a)	a document relating to the proceedings was not sent to, or was 			not received at an appropriate time by, a party or a party’s 				representative; 

		(b)	a document relating to the proceedings was not sent to the 				Tribunal at an appropriate time; 

		(c)	a party, or a party’s representative, was not present at a hearing 			related to the proceedings; or

		(d)	there has been some other procedural irregularity in the 				proceedings.” 

22.	The Decision Notice of 22 July 2009, in stating that none of the conditions in Rule 37 applied, was in my view clearly wrong in law in that the further evidence from the Claimant’s GP which her solicitors had obtained was not put before the Tribunal, the solicitors being unaware that a hearing date had been fixed. That fell within Rule 37(2)(b). Further, the fact that the hearing took place before the one month period for the submission of evidence allowed under Rule 24(7) was a “procedural irregularity” within Rule 37(2)(d). However, it is apparent from the remainder of the Decision Notice which refused set aside, and from the reasons later given by the Tribunal for refusing permission to appeal, that the Tribunal considered that it was in any event not in the interests of justice for the decision to be set aside because the Claimant’s decision to complete the Enquiry Form in the way in which she did (i.e. to request a paper hearing, and not to give details of a representative) was or might well have been deliberate: she may have chosen to reject her representative’s advice. 

23.	In my judgment, however, that conclusion was, in the particular circumstances of this case, one to which no Tribunal could reasonably have come. The facts in this case were unusual and striking: it was clear from the papers before the Tribunal that

	(i) the Claimant had been represented from the time of making the claim by 	solicitors, who had informed the Department, at the time of making the appeal, 	that they were obtaining further evidence; 

	(ii) the solicitors had indeed obtained further medical evidence relevant to the 	appeal; 

	(iii) the mental health descriptors which the incapacity for work examining 	doctor had considered to be satisfied included the following: “avoids carrying 	out routine activities because he is convinced that they will prove too tiring or 	stressful”; “cannot look after himself or herself without help from others”; 	“mental problems impair ability to communicate with other people”

	(iv)  the solicitors, on being informed that the appeal had, without their 	knowledge, been determined on the papers and without the additional 	evidence which they had obtained, had applied promptly to set aside, 	explaining that the Claimant had completed the Enquiry Form in error and 	returned it direct to the Tribunals Service rather than to the solicitors. 

24.	In my judgment there was no satisfactory basis for the Tribunal’s finding that the Claimant had decided to proceed without a representative and to reject her representative’s advice. But even if that finding had been reasonably open to theTribunal, it did not consider the additional injustice arising out of the fact that the Claimant had not been allowed the period of one month which should have been allowed to her under the Rules, to put her further medical evidence before the Tribunal. She gave no indication in the Enquiry Form that she did not intend to provide further evidence within the period of one month allowed. 

25.	In my judgment there was further no basis for the Tribunal’s statement that the letter from the GP dated 26 May 2009 could have made no difference. Although that letter referred to some deterioration, it was clearly of potential relevance to the Claimant’s condition at the date of the decision under appeal. I note that the second page of that letter may be missing from the copy in the bundle (p.113), as what appears to be the second page does not follow on from the first. 

26.	Had I not set aside the substantive decision of 24 June as wrong in law, I would therefore have set aside as wrong in law the refusal to set aside dated 22 July, and I would have re-made that decision of 22 July by setting aside the decision of 24 June under Rule 37.

27.	I note that the Claimant has since been awarded the lower rate of the mobility component and the highest rate of the care component from 19 January 2010 to 18 January 2012, pursuant to a subsequent claim. The rehearing which I have directed will therefore in effect only be concerned with the period from 6 March 2009 to 18 January 2010. 

Charles Turnbull
Judge of the Upper Tribunal
14 April 2010