[2025] UKUT 132 (AAC)

This relates to the occasions during the hearing when the MQTM asked LB a question, and LB replied by asking the MQTM to repeat or clarify their question. Rather than do so, the MQTM moved on to ask LB a question about a different issue instead. I have listened to the audio recording again. This difficulty came up on several occasions during the hearing, including while exploring when LB gave up his gardening work, whether he was given medical advice to keep walking or moving and whether he was using a walking aid in November 2022 (such as crutches or a stick).

The audio recording confirms that at one point LB explained he was trying to answer the questions, but the discussion was moving on without allowing him to do so. LB told the MQTM he was finding this confusing. Despite this, the MQTM did not return to the question LB said he wanted to answer. When LB pointed this out, the MQTM again moved on to asking LB a different question instead. The MQTM explained that the FTT must ask questions about specific activities, and this might seem a bit strange or daft, but this is what the law required the FTT to do. This did not, however, address LB’s request – to be allowed to answer a question he had been asked.

The hearing recording confirms that LB explained again that he had not been able to answer one of the MQTM’s questions. In response, the MQTM moved on to ask a question in a new area. On these occasions, the MQTM did not appear to acknowledge that LB could not hear the questions or was trying to answer an earlier question.

I know that limited capability for work appeals frequently involve covering a lot of ground in a short period of time and an FTT needs to manage its time effectively. It is also possible that LB and MQTM were talking at cross purposes because each of them could not hear the other person properly. What comes across from the audio recording, however, is that LB did not appear to have been heard, acknowledged, and listened to by the Tribunal.

Dealing fairly and justly with LB’s case included ensuring he could participate fully in the proceedings. This is qualified by “so far as practicable” in rule 2(2)(c) of the 2008 Rules. LB was represented by a welfare rights adviser at the hearing, who did not intervene. However, even with that fact, and with the qualification to rule 2(2)(c), ensuring LB could participate in the hearing meant that as soon as his difficulties hearing the MQTM’s questions arose, the FTT needed to pause, check the members and LB could hear one another adequately, and check that he had been given the opportunity to answer the questions he wanted to address.

Responding quickly would also have avoided LB’s sense of being overwhelmed and not being heard by the FTT (see paragraph 25 above). It can be hard to know exactly when to intervene – doing so disrupts the flow of questions and answers. However, although the judge intervened at one point to ask LB if he wanted to cover the questions he had not heard, it was too late, and he no longer felt able to take part effectively.

For these reasons, I have decided there was a procedural irregularity in the way in which the FTT heard and dealt with LB’s appeal. I am satisfied it was both capable of affecting the fairness of the hearing, and that it did so.