[2025] UKUT 132 (AAC)

In around 2021, the First-tier Tribunal (Social Entitlement Chamber) started using an online appeals system called Judicial Case Manager (“JCM”). This is also sometimes known as Core Case Data (“CCD”). The online appeals system includes a digital decision notice tool. This allows the First-tier Tribunal deciding an appeal to write in key information about their decision in relation to the appeal, and to generate automatically a Decision Notice for it.

The digital decision notice tool contains areas where it automatically writes text into a Decision Notice (for example, the name of the parties, and the national insurance number for the appellant). The tool includes optional areas for the Tribunal to input text, for example, the number of pages, which is then incorporated into an automatically generated sentence about the number of pages in the appeal bundle. The tool has other areas where the Tribunal is asked to choose from applicable options, which will then generate text within the Notice. Finally, the tool contains areas where the Tribunal can write in one or more sentences in the form of free text.

Once a Tribunal has provided wording for all the areas it must complete and has added in text for any areas where it wishes to add free text, the decision notice tool will automatically generate a Decision Notice for the appeal.

I am aware that when LB’s appeal was decided in July 2023, the digital decision notice tool automatically generated references to the ESA regulations 2008, in relation to all ESA appeals about limited capability for work and / or work-related activity. The digital decision notice tool inserted those references automatically. The Tribunal could not remove them.

In practical terms, it means that using JCM to generate the Decision Notice automatically for LB’s appeal would inevitably refer to the ESA regulations 2008. It would do so, regardless of what the FTT wished to write into that Decision Notice, and irrespective of whether the 2008 regulations were the applicable ones for his appeal.

The FTT’s Statement of Reasons dated 25 September 2023 also referred to the ESA regulations 2008. It did so at paragraphs 26 onwards, when dealing with exceptional circumstances. The FTT used a sub-heading of “regulation 29/35”. This related to regulations 29 and 35 of the ESA regulations 2008. The equivalent regulations within the ESA regulations 2013 are regulations 25 and 31.

I note that when providing the FTT with its written response for LB’s appeal, DWP did not confirm that his appeal was about a new style ESA claim. At section 5 of the response (pages G to J of bundle), DWP referred to the tests set out specifically in the ESA regulations 2008. DWP’s Response then set out at pages K to R of the bundle, Schedules 2 and 3 to the ESA regulations 2008. I consider this was an unhelpful way to refer to the relevant legislation for LB’s appeal.

Having looked at the FTT appeal bundle, I was able to identify an implied reference to the ESA regulations 2013. It is at page 58. This sets out part 2 of the LCWA assessment at the end of DWP’s internal decision dated 24 November 2022. Under the heading “Further considerations”, it refers to several numbered regulations that relate to the ESA regulations 2013 (for example regulation 21 (hospital patients) and regulation 25 (LCW risk)). This provided a clue for the FTT about which regulations applied. I recognise that it did so in a bundle where DWP also referred several times, incorrectly, to the ESA regulations 2008.

In R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, the Court of Appeal provided a summary of errors of law. The Court of Appeal confirmed it is an error of law to make a material misdirection of law on any material matter (paragraph 9v) of decision).

Applying this to the circumstances described at paragraphs 40 to 43 above, I am satisfied it was not, of itself, a material misdirection of law for the FTT to produce a Decision Notice that referred to the ESA regulations 2008 instead of the ESA regulations 2013. This was a product of what the JCM digital decision notice tool automatically builds into a Decision Notice. It was not possible for the FTT to use that tool on JCM and to remove the references to the incorrect regulations.

I am, however, troubled by the fact that the FTT failed to identify and address the correct ESA regulations in its Statement of Reasons dated 25 September 2023. The Secretary of State argues that this amounted to the FTT misdirecting itself in law, but not materially, because the wording of the relevant provisions in of the ESA regulations 2008 is almost identical to the equivalent parts of the ESA regulations 2013. The Secretary of State argues that it cannot be said the slight variations in wording between the regulations would have led to a different outcome, when this is considered in the context of LB’s evidence.

This must, however, be balanced against the fact that the combination of Decision Notice and Statement of Reasons suggest the FTT was not aware it was deciding a new style ESA appeal and did not apply the ESA regulations 2013 to it. It does not seem to be controversial to state that in an appeal, the parties are entitled to expect that the Tribunal determining it has firstly identified, and secondly applied, the correct legislation.

In terms of the “materiality” of a misdirection in law, it is possible that a Tribunal can factually apply the correct legislation but describe or list it incorrectly in its Decision Notice and / or Statement of Reasons. In those circumstances, the Tribunal’s decision will need to be scrutinised to determine whether it applied the correct legislation in practice.

As explained above, DWP should have set out in the appeal bundle that this was a new style ESA appeal. An obvious place to do so would have been on page A of the Bundle, in the row marked “Benefit”. There are other places as well, for example, in section 4 of the response (“The facts of the case”) or in section 5, when citing the applicable legislation. However, despite DWP not explaining the position, a FTT must be able to identify for itself which law applies to an appeal. A First-tier Agency failing to state the law correctly (or not stating it at all) does not relieve an FTT of its inquisitorial duty to do so.

I do not, however, advocate that FTTs simply adjourn or postpone ESA appeals that do not contain a definite statement by DWP about whether the appeal is about new style ESA or not. This would not be a proportionate approach. Some appeal bundles will always contain inadequate or incomplete explanations of the applicable law by the First-tier Agency. Even if the bundle does not state a position about whether the appeal is a new style ESA appeal or not, there are a number of approaches the FTT can take to work this out, applying its inquisitorial function.

Firstly, in LB’s appeal, there was a clue from the appeal bundle that this was an appeal under the ESA regulations 2013 (the references to regulation numbers at page 58 of bundle). Secondly, the circumstances of the appeal pointed to it likely being a new style ESA claim. These include that it was a new claim, made recently in time (likely after UC would have been rolled out in LB’s area).

Finally, the FTT’s Decision Notice confirmed it had a DWP Presenting Officer participating in the telephone hearing of LB’s appeal. Paragraph 10 of the Statement of Reasons explains the Presenting Officer provided details about the claim that were not in the appeal bundle. The FTT could, and should, have asked the Presenting Officer to confirm the position, if it was unsure which type of ESA it was dealing with. I am aware that many ESA appeals do not involve a Presenting Officer but where they do, this provides another source of information for the FTT. A Tribunal can also ask the appellant at an oral hearing about the circumstances in which they claimed ESA.

On balance, I am satisfied that while the FTT misdirected itself in law, as evidenced in its Statement of Reasons, this was not material. I have reached this conclusion by considering the specific provisions that the FTT referred to (directly or impliedly) in its Statement of Reasons. I agree with the Secretary of State that the differences in wording between the specific provisions between the different sets of ESA regulations were slight. They amount to a comma and using the plural of “apply” (“applies”) in one set of regulations.

It should not be assumed that my decision on this issue represents a statement of position generally for FTTs that fail to correctly identify whether they are deciding a new style ESA appeal or an “old style” ESA appeal. Any FTT that does not check whether it has applied the correct legislation in deciding an appeal, puts its decision at clear risk of being set aside for material misdirection in law.

Had the FTT referred in more detail to the ESA regulations in its Statement of Reasons, this might have resulted in a clearer indication that the FTT was materially misdirecting itself in law by applying the incorrect ESA regulations when deciding LB’s appeal. The fact that the FTT did not give that detail has arguably exposed its decision to a different error of law in terms of adequacy of reasoning, including that it did not address LB’s argument about becoming a hospital inpatient.

I encourage First-tier Tribunals deciding limited capability for work / work-related activity ESA appeals, and using the digital decision notice tool within JCM, to make clear, in any Statement of Reasons produced, that they have correctly identified the relevant applicable legislation when deciding the ESA appeal. It is also open to First-tier Tribunals to include wording in the free-text section of their JCM-generated Decision Notices to explain which ESA regulations they have actually applied to determine the appeal.

I strongly encourage DWP to include wording in its Response to ESA appeals to confirm whether the claim in question is a new style ESA claim. DWP should also refer to the relevant regulations for the specific ESA appeal in its Responses, for example, on the front page of the Response and sections 4 and 5.