[2025] UKUT 107 (AAC)

The Upper Tribunal Judge who granted permission to appeal noted that CH was asked a series of closed questions to which the answer was “Yes” or “No” without further clarification, or follow up to allow CH to expand or provide further information, and identified that this may be a procedural irregularity in the proceedings. I set out here the SSWP’s submission on this issue:

“I have listened to the audio recording for the record of proceedings, and it is clear that the claimant was asked questions in a closed manner which resulted in her responding with “yes” or “no”. For example, at the 07.43-minute mark in the recording the claimant is asked by the Tribunal “you were working in Primark?” and the claimant answered “yes”. It is not clear if the claimant would have expanded on this as the Tribunal immediately moved on to ask “was there much standing up there?”. The claimant has answered with “yes, that was difficult as well, I could have regular breaks” but again the Tribunal moved on immediately to the next question asking, “do you still work at Primark?” with the Claimant answering “no”.”.

The Upper Tribunal Judge also granted permission because at various points in the statement of reasons issued by the Tribunal, it says that the evidence from CH was “vague”. Four examples given by CH when seeking permission to appeal are set out here:

“2.i At paragraph 37 of the Statement of Reasons (“SOR”), the Tribunal records that the appellant was asked how she knows whether she has sufficient money when she buys something from Amazon and that “her response was somewhat vague in respect of this.” However, the record of proceedings shows that the Appellant answered clearly saying, “I don’t, that’s where I have issues sometimes, I fall into like an overdraft.”

2.ii At paragraph 45 of the SOR the Tribunal states that CH was asked how long it took her to walk four aisles in Aldi and that “Her response was vague, the said that she could use her son’s pushchair to walk with.” However, the record of proceedings shows that the appellant answered the question clearly, saying that she had “no idea” how long it would take and then provided further information about how she managed in Aldi and the help she received.

2.iii. At paragraph 54 of the SOR the Tribunal states that when CH was asked about snacking during the day “she did not give an unequivocal answer”. However, the recording shows that although she spoke somewhat hesitantly, the appellant provided a clear answer, saying “I’d probably just have...most of the time I just do like a cup of tea and just live off a cup of tea to be honest but um, otherwise it would just be like a biscuit or something with the cup of tea.”

2.iv. At paragraph 55 of the SOR the Tribunal has record that in response to a question on what difficulties she had taking medication, “She told the Tribunal that she could not remember the difficulties”, but the appellant had actually said that the difficulty was that she could not remember to take the medication (Record of Proceedings 44.10 - 45.45). The Tribunal then goes on to say at paragraph 57 that the appellant’s response to a question about taking her medication was “vague”. However, the Record of Proceedings (46.10 - 47.25) shows that the appellant’s response was clear, having been asked again what her difficulty was the appellant said, “like I say, it’s just because I forget.” The appellant then explained in answer to a further question about aids to assist her, that she used a pill box which enabled her to know when she had missed taking her medication, but the Tribunal has not made any reference to use of a pill box in the SOR. Needing to use an aid such as a pill box would potentially have scored the appellant 1 point for descriptor 3(b)(i).”

The SSWP said the following about this:

“However, it is not entirely clear upon listening to the recording as to whether the claimant was being vague, or simply answering to the closed questioning style employed at time by the Tribunal. In my view, the Tribunal would have benefitted from asking the claimant follow up questions to allow it to fully understand what the claimant's difficulties with an activity such as budgeting decisions. It’s not clear to me, when listening to the recording, why the claimant needs her father, or her son’s father to help with paying her bills. The Tribunal could have reasonably enquired further about this rather than taking the position of the claimant being vague in her responses. This would have also allowed the claimant the opportunity to fully participate in line with rule 2(2) (c) of the Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chambers) Rules 2008.

“Dealing with a case fairly and justly includes

(c)

Ensuring, so far as is practicable, that the parties are able to

participate fully in the proceedings.”