IN THE UPPER TRIBUNAL	Case No.  CA/651/2013
ADMINISTRATIVE APPEALS CHAMBER

Before Judge Nicholas Paines QC

Decision:  The decision of the First-tier Tribunal involved an error of law.  I set it aside and remit the matter to a freshly constituted tribunal for redetermination.

REASONS FOR DECISION

1.	Both parties have consented to the setting aside of the decision in this case.  It is one to which the recently guidance given by the Upper Tribunal in JS v Secretary of State for Work and Pensions [2013] UKUT 100 (AAC) (after the events that I mention below occurred) is very relevant.
2.	The claimant, who has died since bringing this appeal, was an already elderly man, born in 1927, suffering from chronic obstructive pulmonary disease (COPD).  He claimed an attendance allowance in August 2010 on the basis of needs for care and attention.  In September 2010 the claim was refused, the decision-maker finding the claimant’s care needs not to be great enough to satisfy the statutory criteria.  The claimant appealed to the First-tier Tribunal with the assistance of a representative from his local authority.  
3.	The First-tier Tribunal heard the appeal in May 2011.  The claimant did not attend; he had written to the tribunal explaining that he would find it too exhausting and stressful and that he would have to rely on his wife, who was not in good health herself, to push him in his wheelchair.  The claimant’s representative attended on his behalf.
4.	The tribunal dismissed the appeal.  The claimant’s representative requested a statement of reasons, which was provided in September 2011.  The statement of reasons accepted that the claimant suffered from ‘COPD/emphysema’ and referred to what the claimant had said on the claim form about his breathlessness and consequent slowness.  The tribunal found that the claimant needed help at the beginning and end of each day, when going out two or three times a week and when going to the toilet ‘perhaps twice a night’.  A need for supervision had not been claimed – indeed, the claimant’s wife felt confident about leaving him in the house from time to time.  
5.	The tribunal reminded themselves of the criteria for attendance allowance: a need for frequent attention throughout the day and what they referred to as ‘prolonged and repeated attention’ at night.  They accepted that the claimant’s COPD was severe and that it severely impacted his daily living; they also found that that he did reasonably require attention in connection with getting up and going to bed and associated activities, but did not reasonably require it at other times of day except in connection with going out.  This did not in their view amount to a need for frequent attention throughout the day.  
6.	In connection with going out, the tribunal expressed concern about the claimant’s representative’s statement to them that a nurse, who had said in a letter that the claimant could walk 50 metres, had withdrawn the assertion that he could walk so far.  They also rejected the representative’s statement that the claimant liked to go out each day; they preferred the claimant’s written evidence that he did not feel up to going out each day, though his wife encouraged him to.
7.	In relation to night-time attention the tribunal concluded that it was unlikely that the claimant would need to use the toilet more than twice during the night and that the attention he needed in connection with doing so ‘did not amount to prolonged or repeated attention’.
8.	In October 2011 the claimant’s representative sought permission to appeal, arguing that two references in the statement of reasons to ‘prolonged and repeated attention’ cast doubt over whether the tribunal had correctly applied the statutory criterion of prolonged or repeated attention; in addition, the tribunal had failed to make findings in respect of some of the claimed care needs, had apparently discounted the help the claimant needed out of doors and had given weight to the nurse’s original statement that the claimant could walk 50 metres without clarifying the position with her by telephone,. 
9.	It appears from the papers that the district tribunal judge passed the letter of appeal to the tribunal judge who had presided.  A document entitled “Comments on appellant’s representations as ordered by” the district judge, signed by the judge who had presided, was sent to the parties on 27 March 2012.  The covering letter referred to the district judge having directed that the tribunal judge “should respond” to the claimant’s application and described the enclosed document as “the response” from the tribunal judge. 
10.	The response insisted that the tribunal had been satisfied that the claimant’s night-time needs were insufficient to entitle him to benefit, saying that in the tribunal’s view ‘repeated’ did not mean “once, sometimes twice but rarely more than that” and that the claimant’s relevant need was solely for help in rising from bed, without any associated help such as with changing clothing.  The paragraph concluded that there was “nothing else, save to mention that [the claimant] told the DWP he had no difficulties at night”.  The paragraph did not explain whether the tribunal had employed a test of ‘prolonged and repeated attention’ or of ‘prolonged or repeated attention’.  
11.	In relation to daytime needs, the response repeated the tribunal’s finding that the claimant needed help at the beginning and end of the day.  The paragraph went on to refer to the representative’s suggestion in the appeal letter that the claimant needed help with brushing his teeth after each meal; as to that, the presiding judge said that there had been no evidence that the claimant was in the habit of brushing his teeth after each meal.  The response then debated the representative’s suggestion that help with brushing his teeth and going out, added to the attention that the tribunal had found the claimant needed, could amount to attention frequently throughout the day;  it said that the tribunal disagreed.  
12.	As regards the evidence, the response said that the nurse’s alleged retraction of her statement that the claimant could walk 50 metres was not properly evidenced; the letter containing the statement had been prepared some time before and the claimant had taken the opportunity to contradict it.  It was not clear why it had not been possible to obtain a written retraction from the nurse if she did wish to retract the statement.  It would have been impractical for the tribunal, which had three members, to take evidence from the nurse by telephone.  
13.	The claimant’s representative telephoned the First-tier Tribunal and was told that the document was not a refusal of permission to appeal; the papers would be sent back to the district tribunal judge for a decision on that.  When the representative followed this up after the district tribunal judge’s return from leave, he received a letter in mid May 2012 saying that the district judge had now confirmed that “no further action was required”.  The representative thereupon applied to the Upper Tribunal in mid June for permission to appeal, using form UT1.  He included a page setting out the procedural history and taking issue with some of the statements in what he described as the “Statement of reasons version 2”.
14.	On 3 July the Upper Tribunal replied, saying that the First-tier Tribunal appeals service had confirmed that they had not received an application to the First-tier Tribunal for permission to appeal; the Upper Tribunal clerk said that she had sent the claimant’s application to the First-tier Tribunal herself.  
15.	The next document in the papers is a decision notice signed by another tribunal judge referring to an application for permission to appeal against the decision of May.  The notice, which was issued to the parties on 31 December 2012, explained that the judge had been asked to consider the file since permission to appeal had not been formally refused.  In the notice the judge said that she had dealt with the application on the basis of the tribunal’s first statement of reasons, since “it would not normally be the case that a statement of reasons can be added to save for correcting a clerical error”.  She refused leave, finding no error of law in the decision as evidenced by the first statement of reasons, adding that whilst she had not taken the second document into account in reaching her decision, that document could not have left the claimant in any doubt as to why the decision was made.
16.	On 31 January 2013 the claimant’s representative re-submitted form UT1 to the Upper Tribunal.  In the meantime the claimant had, sadly, died on 6 January.
17.	In April 2013 Judge Lane gave permission to appeal, finding it arguable that the decision offended against the principles recently laid down in JS v Secretary of State for Work and Pensions [2013] UKUT 100 (AAC).  She invited the parties to indicate whether they consented to the decision being set aside on those grounds.  Both parties have given consent.
18.	This case is a further illustration of the difficulties that can arise out of use of the power to review a First-tier Tribunal decision at First-tier Tribunal level.  It is a useful power, which can benefit claimants by enabling flaws in a basically sound decision to be corrected or an unsound decision to be set aside, without the extra delay inherent in an appeal to the Upper Tribunal and (quite often) a remission to the First-tier Tribunal for a re-hearing.  The First-tier Tribunal judges who were involved in the present case were plainly engaged in a conscientious attempt to obviate the need for an appeal in this elderly claimant’s case; it is easy to be wise with hindsight, as well as with the benefit of the insights of the judges who decided JS.  But the most well-intentioned attempts to use the power can backfire if the principles laid down in JS are not followed.  
19.	As is well known, the law (section 9 of the Act, together with the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008) requires the First-tier Tribunal to consider whether to review a decision in respect of which it receives an application for permission to appeal.  It can only do so if it is satisfied there was an error of law in the decision.  Even if so, it can decide to take no action as part of the review (instead, giving permission to appeal).  If it decides to take action it then has power to correct accidental errors, amend the reasons given for the decision, or set it aside and (usually) re-decide the case.  The tribunal must notify the parties of the outcome of the review and, if it has taken any action as a result of the review without first giving the parties an opportunity to make representations, must tell them of their right to apply for the decision to be reviewed again in the light of their representations.
20.	Particularly in a case where, as is common, grounds of appeal consist of or include a challenge to the adequacy of a tribunal’s statement of reasons, referring the case back to the tribunal judge who presided may well seem an attractive course to a district tribunal judge considering the application for permission.  But the present case, like JS, shows the possible pitfalls. 
21.	It is not clear whether the district tribunal judge formed a view on whether there was an error of law in the decision.   Unless that judge was satisfied that there was, the judge had no power to do anything (rule 40(2)(b) of the Chamber Rules).   Moreover, as is pointed out in JS, the Senior President’s Practice Statement on Composition of Tribunals gives responsibility for conducting reviews to a salaried judge where the presiding judge was a fee-paid judge.  That judge must decide whether the decision has an error of law in it.   It is obviously not permissible for that judge (whom, I shall call ‘the permission judge’) to delegate that decision to the judge who presided over the making of the decision.  In this case it rather appears, from the permission judge’s directing the presiding judge to ‘respond’ (apparently directly to the parties) to the application for permission, as though the permission judge overlooked the need for an initial decision upon whether there was an error of law to be taken by the permission judge.  
22.	It may be that the permission judge here had concluded that there was an inadequate statement of the tribunal’s reasons – and therefore an error of law – but that it might be appropriate for the presiding judge to correct this by use of the tribunal’s power under section 9(4)(b) to amend the reasons.  If so, the permission judge was right to identify the presiding judge as the appropriate judge to do so: see paragraph 25 of JS.  But – and this may not have been sufficiently appreciated before JS was decided – the decision whether or not to amend the reasons remains a decision for the permission judge: see paragraph 26 of JS.  It is now clear that that judge should review any draft of amended reasons to see both whether it is appropriate to amend the reasons in those terms and whether the parties should have an opportunity to make representations – as they generally should: see paragraphs 26 and 27 of JS.
23.	Another lesson that JS teaches is that the power to give additional reasons is only to be used exceptionally and with safeguards (see paragraphs 34 to 36 and 44 to 51).  It is inevitable that a judge placed in the position in which the presiding judge was placed in the present case will amend or supplement the reasons in a manner that is reactive to the deficiencies asserted in the grounds of appeal.  Whether or not the judge actually “drifts into justification to such an extent that the tribunal changes from a decision-maker into an adversary in the appeal process” (JS at paragraph 42), it is almost impossible to avoid creating the impression that the tribunal has or may have done so if the new reasons stray beyond the sorts of permissible cases identified in paragraphs 47 or 48 of that decision.   
24.	In this case the presiding judge – perfectly understandably in the circumstances – engaged with the representative’s criticisms in over a page of single spaced print, concluding that the judge saw nothing in the representative’s letter “that gives any cause to concede that it was wrong”.  There is nothing in the tone or contents of the response that would have been objectionable if the representative’s letter had been a written submission to the tribunal that it was dealing with in the original statement of reasons.  But, read in the context of a challenge to an existing statement of reasons, it very much gives the impression of defending rather than explaining the tribunal’s conclusion on the appeal.  
25.	The result is that the second statement simultaneously casts doubt – merely by the fact of its existence – upon the adequacy of the first statement of reasons and at the same time undermines the combined force of the two statements put together because of the almost inevitably confrontational appearance of the second, which is due, I stress, not so much to its content as to its context.  The Secretary of State was right to concede that the decision.  I do not need to consider whether the third judge was right in her conclusion that the original statement of reasons did not disclose an error of law; I understand why she did not think it proper for her to take the second statement into account but, for the reasons I have given, it seems to me that it is now too late to “put the clock back” in that way.

Judge Nicholas Paines QC
9 July 2013