5. � In the context of a complex case where it was evident that the appellant wished to participate, moreover where it is apparent from the Decision Notice that the tribunal had questions to put to the appellant, and also where the possibility of a telephone hearing had been raised by the appellant, in my judgment the tribunal failed to adequately explain why it was consistent with the overriding objective to decide the appeal with no effective hearing and on the papers alone �
I note that in that case the claimant had raised the possibility of a telephone hearing herself and the judge identified the error in the inadequacy of the tribunal�s reasons, leaving open the possibility that the tribunal might have been able to justify a decision not to hold such a hearing.
25. Judge Wright referred to SW v Secretary of State for Work and Pensions [2015] UKUT 319 (AAC). Upper Tribunal Judge Knowles QC there referred to the Senior President of Tribunals� practice direction on Child, Vulnerable Adult and Sensitive Witnesses of October 2008. Paragraph 7 of that direction says: �It may be appropriate for the Tribunal to direct that the evidence [of such a witness] be given by telephone, video link or other means �� In that case, as in Judge Wright�s, the claimant �had made plain her wish to speak to the tribunal by telephone �, a wish she repeated when she rang the Tribunals Service on 21 March 2014 ��
26. Mr Howells did not cite those cases, but he relied on the practice direction. I allowed time after the hearing for written submissions on those cases.
27. In his written submission after the hearing, Mr Howells argued that the tribunal should have considered the possibility of a telephone hearing. It is true that the claimant did not ask for one or even suggest the possibility, but she had no reason to believe one was possible. The overriding objective and the practice direction apply even if the claimant has not raised the possibility.
28. In reply, Ms Apps suggested a three stage approach:
� The claimant�s choice should be respected.
� The tribunal should first determine whether it is necessary to hear oral evidence.
� Only if it is necessary should the tribunal consider a telephone hearing.
The cases can be distinguished because:
� The claimant in this case did not raise the possibility.
� In both cases, the tribunal�s consideration had reached, or should have reached, the third stage.
29. It is beyond dispute that a telephone hearing is permissible; that is made clear by the definition in rule 1(3). It is also beyond dispute that in a particular case the tribunal may be required to consider the possibility of a telephone hearing, either by reference to the overriding objective or the practice direction. So far as I am aware, the only cases in which this has previously been considered are ones in which the claimants had raised the possibility themselves.
30. I accept Mr Howells� argument that it is necessary for the claimant to ask for a telephone hearing or to raise the possibility. That would be unrealistic unless and until the First-tier Tribunal notifies claimants that this is a possibility.
31. I accept Ms Apps� argument that the tribunal should respect the claimant�s wishes and resist raising options that the claimant does not want. But that assumes the claimant�s wishes are worth respecting and that depends on whether the claimant was aware of the possibility and made an informed choice. This is but one factor among many that has to be taken into account.
32. It is important to remember that the application of the overriding objective has to be proportionate. That applies to both the procedural decision made by the tribunal and to the time devoted to it. With the luxury of time, the Upper Tribunal and the representatives who appear before it can indulge in detailed analysis. In practice, the First-tier Tribunal has to make its decision swiftly without pondering every possibility and poring over the papers to extract every possible factor indicating that a telephone hearing might be appropriate.
33. I do not accept Ms Apps� second and third stages. They may have been features of the cases I have cited, but they are not essential features. There is no clear line between cases where oral evidence is necessary and those where it is not. It is always possible to make a decision without hearing more evidence, but more evidence will usually make the decision a better informed one, even if it does not change the outcome. The approach has to be more nuanced that Ms Apps suggests. The tribunal has to take account, as one factor among many, of the likelihood that it will be able to obtain more relevant evidence.
34. One factor that it is always necessary to consider is whether the claimant could cope with a telephone hearing. Neither Mr Howells nor Ms Apps mentioned this. The claimant wrote of her anxiety and panic. It is true that she mentioned this in the context of unfamiliar locations and crowds. But she did not have a telephone hearing in mind and she had told the health care professional that she had no problem using a phone or communicating with other people. On the other hand, the claimant gave her reasons for not attending a hearing on the basis of the description of the hearing on the questionnaire. That does not mean that they were her only reasons. It does not mean that she would necessarily have been willing to participate in a telephone hearing.
35. Finally, Ms Apps mentioned the need for the hearing to be in public in order to comply with the Convention right in Article 6, unless a private hearing could be justified. I do not see this as an insuperable problem if a telephone hearing is other indicated. After all, if the hearing is by telephone, the venue need not be local to the claimant�s home. �
36. My conclusion is that there is no error of law in this respect. I regularly see cases in which tribunals explain why they have not held a hearing or have proceeded at a hearing in the absence of the claimant. Often they are formulaic and indicate little more than a cursory consideration. The tribunal�s reasons in this case are anything but formulaic and they disclose anything but a cursory consideration. They are soundly based in the evidence and circumstances of the case. They show that the tribunal identified all the relevant considerations that appeared from the evidence. They showed that the tribunal had even made enquiries to see if it could find the letter to which the claimant had referred. I consider that the tribunal devoted a proportionate amount of time to analysing whether to hold a hearing. It is relevant to recall the Terluk approach. The issue is whether the claimant was dealt with fairly, not whether the tribunal came to the one and only perfect conclusion. The proportionality of the tribunal�s time and analysis feeds into that test. Offering the option of a telephone hearing was one possibility that a tribunal might have considered, but I do not consider that taking all the information before the tribunal into account that this was necessary in order to deal with the issue fairly.
The Secretary of State�s duty to disclose relevant evidence
37. This has recently been the subject of two decisions of a three-judge panel. FN v Secretary of State for Work and Pensions [2015] UKUT 670 (AAC) (CSE/19/2014) is being treated as the lead case. The other case is CSE/453/2013. �Neither was available at the hearing. I obtained one and the Secretary of State provided the other when it was promulgated. I allowed the parties time to make submissions on these decisions and their relevance to this case.
38. I can deal with these cases briefly, because Ms Apps has been able to tell me that the Secretary of State does not hold any other relevant evidence on the claimant�s files. It would be an empty exercise to criticise the First-tier Tribunal for failing to ask for evidence that we now know does not exist. The tribunal had the report from the current assessment and from the previous assessment in 2011. That earlier assessment was made in connection with the conversion of the claimant�s case from income support on the grounds of incapacity to employment and support allowance. I am sceptical of the value of any evidence from before the conversion process. Even if it existed, reports would relate to incapacity benefit activities and descriptors, and the evidence would have been collected with those criteria in mind.
39. Mr Howells made the point that the Secretary of State�s submission to the First-tier Tribunal did not disclose that the claimant had been in receipt of benefit from 1994. As I have said, I doubt whether evidence relevant to incapacity benefit would be of much help and the mere knowledge of the award would not help the tribunal one way or the other.
Obtaining evidence relevant to the claimant�s case
40. Although tribunals have the power to obtain medical evidence, they do not do so as a matter of routine. They rightly expect parties to provide the evidence on which they wish to rely.
41. One factor relevant to whether to exercise the power is the claimant�s ability to obtain the evidence herself. In this case, the claimant had previously obtained a letter from her GP, although we do not know whether that was done on her own initiative. Ms Apps suggested two possibilities:
� the claimant could have asked the GP for a copy of the letter, which presumably would not incur a fee;
� she could have made a subject access request under the Data Protection Act 1998 for the information on her records, which would incur at most a fee of �10. This has replaced the provisions of the Access to Health Records Act 1990. �
42. Another factor is whether the tribunal would have obtained evidence that would assist it. In practice, the most likely source of evidence would be the GP�s records. These are obtained regularly, but not routinely. They can be helpful, but not always. The key consideration is always whether the records are likely to contain the sort of information relevant to the precise application of the descriptors. In my experience of cases involving anxiety and panic, the notes may contain some information, but are unlikely to contain the sort of information required to decide whether the requirements of any particular descriptor are satisfied.
43. In conclusion, I cannot criticise the tribunal for proceeding on the evidence before it.
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Signed on original |
Edward Jacobs |