[2024] UKUT 4 (AAC)

The first ground of appeal advanced by [GS’] representative is that the First-tier Tribunal erred in law because it failed to make findings on his wife’s oral evidence, given at the hearing of his appeal.

The Tribunal’s statement of reasons records that [GS’] wife attended the hearing, but I can find no mention in it of her having given oral evidence. The Tribunal that heard [GS’] appeal was presided over by Judge Harty. [GS’] application to the First-tier Tribunal for permission to appeal to the Upper Tribunal was also decided by Judge Harty, on 1 November 2022. The decision notice recording the judge’s reasons for refusing permission included:

a statement that the Tribunal considered all the evidence including the oral evidence given by [GS’] wife at the hearing; and

“the Tribunal concluded that the evidence of [GS] and his wife at the hearing on 13.07.2022, that he needed help with everything, was not a reliable account of how he had been on 14.10.2021”.

The judge’s permission reasons therefore (a) stated that [GS’] wife’s oral evidence was taken into account when the Tribunal refused his appeal in July 2022, although that evidence was not mentioned in the Tribunal’s statement of reasons, and (b) found that the wife’s oral evidence was unreliable, a finding that does not appear in the Tribunal’s statement of reasons.

I grant permission to appeal on the ground that the Tribunal arguably erred in law by failing to make findings of fact about [GS’] wife’s oral evidence. The Tribunal’s statement of reasons makes no mention of her oral evidence let alone findings as to whether it was accepted or rejected and, if rejected, why.

Even if I assume that the findings described in Judge Harty’s permission reasons were the (unexpressed) findings of the panel that decided [GS’] appeal in July 2022, it is arguably doubtful whether they may be relied on in the present appeal before the Upper Tribunal. I say that because the Court of Appeal in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2007] EWCA Civ 498 held that “in principle a decision maker who gives one set of reasons cannot, when challenged, come up with another set”. Since [GS’] wife’s oral evidence was not mentioned in the Tribunal’s statement of reasons, arguably the reasons subsequently given were impermissible new reasons in that they dealt with a matter that was absent from the Tribunal’s statement of reasons.

Ground 2

Essentially, the second ground is that the Tribunal made inconsistent findings: [GS] both could and could not cope with the work of a carpet fitter. Paragraph 14 of the Tribunal’s reasons includes a finding that [GS’] reported statement that he worked as a carpet fitter for 5 ½ months in late 2018 / early 2019 was to be taken at face value and his argument that he meant helping a carpet fitter out by doing undemanding tasks like passing a pencil should be rejected. Paragraph 28 of the reasons includes a finding that “[GS] could not safely do hard physical labour, like…carpet fitting”.

The Tribunal was dealing with an appeal against a Universal Credit decision taken on 14 October 2021. The evidence before the Tribunal included that [GS’] lower back pain became worse in 2021 following administration of a Covid vaccine. The Tribunal’s reasons do not say when in 2021 but, since the section of the statement of reasons which recounts the evidence is set out chronologically, it appears to me that the vaccine preceded the HCP assessment (the next event described) on 30 September 2021.

I do not grant permission to appeal on the second ground advanced by [GS’] representative. The Tribunal’s findings would have been inconsistent had they related to [GS’] capability at the same point in time. But they did not. One concerned his capability in late 2018 / early 2019 and the other in October 2021, and there was evidence of a deterioration in [GS’] condition in the intervening period. [GS] does not have a realistic prospect of establishing that the Tribunal erred in law by reason of having made inconsistent findings of fact.”