[2023] UKUT 151 (AAC)

Unusually this is a case in which, put simply, the FTT announced one decision at the end of the substantive hearing and then changed its mind after further discussion with the Appellant and announced a different decision, or at least a revised decision modified in one important respect. Even more unusually, this is a case in which a 73 page professional transcript of the FTT hearing has been prepared by The Transcription Agency, the cost having been met by HMCTS.

The first 53 pages of the transcript cover the hearing itself. There was then an adjournment while the panel deliberated. After the tribunal clerk read out the case details again for the record and the Judge had indicated that they would dispense with the introductions, the FTT announced its decision (pp.511-512):

This passage was then followed by a further five pages recording a three-way discussion between the Appellant, his representative and the Judge, during which the Appellant explained the problems he had had with his various previous different representatives since 2016. The Judge then indicated that the panel would withdraw again and consider what had been said. The hearing was adjourned again, and on its return the court clerk announced the case reference again. This protocol was followed by this exchange (pp.518-519):

The conversation as transcribed then continued for a further eight pages. As noted above, the FTT’s decision notice and statement of reasons both recorded the period of the award of the enhanced rate of both PIP components as being from 26 August 2017 (and not 16 January 2018, as originally announced) to 15 January 2028.

Frankly, it is not entirely clear what the Judge thought he was doing by agreeing to change the FTT’s decision in the light of the Appellant’s further representations. Perhaps the most generous interpretation is that the Judge believed that the FTT’s decision was not finalised until it was issued by way of a decision notice. In fairness this is the position in the courts, where the court order rather than the judge’s judgment is determinative. But not so in tribunals. Rule 33(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) provides that “The Tribunal may give a decision orally at a hearing”; if such a decision is given, then that is the point it is promulgated. The Court of Appeal in Patel v Secretary of State for the Home Department [2015] EWCA Civ 1175 held that a tribunal had no power to change its decision once it had been given orally. That case concerned an oral determination by a judge of the Upper Tribunal (Immigration and Asylum Chamber) on an application for permission to appeal, but there is no reason why the same principle does not apply to decisions given by the First-tier Tribunal. Accordingly, a decision given orally by the FTT is definitive and cannot subsequently be changed informally, as the FTT in the instant appeal purported to do.

True, tribunals are intended to operate as an informal dispute resolution mechanism, but there are and must be limits to that informality. There are also several good reasons why tribunals in the Social Entitlement Chamber are encouraged usually to announce their decisions on the day and indeed shortly after the conclusion of the proceedings. However, this case is a salutary reminder of the problems that can arise if a tribunal fails to make it clear that it has made its decision and the time for further discussion and argument is over. A necessary skill of judge-craft is the ability to draw a line and stick to it once the decision has been given.