[2025] UKUT 107 (AAC)

I have carefully listened to the recording of the Tribunal’s hearing. Whilst not every question was “closed”, there were a significant number of questions (not just those set out above) where the answer would either be “Yes” or “No” and no real room was given for clarification, follow up or explanation on several occasions. The representative for CH asked questions at the end of the hearing, which enabled CH to answer much more fully about her difficulties with various daily living activities such as her ability to cook or prepare food, her struggles to go to new places, her neglect of self in respect of washing, dressing, washing, social engagement and also her physical pain when undertaking various tasks.

I fully recognise that all Tribunals are under significant pressure with the number of cases that they do in a day. This case involved most PIP descriptors, and the time allocated for a hearing may not always be sufficient. However, it is vitally important that all Tribunals recognise that the overriding objective includes both flexibility (Rule 2(2)(b) of the Tribunal Procedure (First Tier Tribunal) (SEC) Rule 2008 but also by ensuring, “so far as is practicable, that the parties are able to participate fully in the proceedings”. This applies when exercising any power under the Rules (Rule 2(3) of the Rules set out above).

The papers before the Tribunal had evidence that CH said

“I find it difficult to say verbally what my difficulties are because my dyslexia mean I mix my words up and can’t think of the right words” (appeal to the First-tier Tribunal – “FTT” - p23 of the FTT bundle).”

In her claim form she says (p36 of the FTT bundle):

“Every day I get my words muddled and I start to stutter in sentences. I have difficulty explaining things and sometimes people help me finish my sentence and think of words. This is due to my dyslexia and anxiety. I take longer to answer someone’s questions face to face. Which other people jump in before me so I don’t get a chance to try, it upsets me and makes me feel stupid and leads to feeling depressed. I struggle talking on the phone and when I can’t understand someone or hear them properly, I have put the phone down on them because I get anxious”.

In her claim form, the Appellant also says (p36 of the FTT bundle):

“Most days I struggle to read because i struggle to focus so it takes me a long time to get through one sentence and my dyslexia can make me take longer to read because the words get mixed up which gets me anxious because i feel myself get hot with embarrassment. I get help by the people around me”.

There are also several places in the claim form, and other supporting documentation which identifies that CH has anxiety and becomes overwhelmed when meeting new people and that “sometimes she won’t speak at all, I get sweaty and start to get palpitations” (p36 of 281). She also says that she “struggles with my memory” (p38 of 281 of the FTT bundle).

The information obtained by the HCP upon assessment was that CH has had longstanding anxiety and depression and borderline personality disorder, and has both medication and counselling for these. The Tribunal also had her GP records which identify that in May 2022, CH was under the care of the local NHS Foundation Trust Team with a diagnosis of “moderate depression with traits of emotionally unstable personality disorder” (p159 of 281) which has been the case since October 2018. An outpatient letter dated 19 May 2022 to CH identifies that she was “anxious when she had to leave the house” (p160 of 281), and that she was having counselling. She was prescribed various forms of medication. A letter from her Consultant Psychiatrist identified that she was under mental health treatment between February 2022 – June 2022 with a provisional diagnosis of “emotionally unstable personality disorder, mixed anxiety and depression and PTSD and was prescribed medication for the same” (p231 of 281). It also noted that she had taken an overdose in September 2021 (p174 of 281) and identifies that her mental health support came from her engagement with an IDVA (independent domestic violence adviser), and that CH had been the subject of serious sexual assault and abuse in 2021 (p174 of 201 and p202-209 of 281).

Alongside this, there was written evidence from her mother who said that she offers a “variety of core prompts to help her with her everyday tasks. These range from micro to extensive solutions” (p219 of 281). There was also evidence from her former partner setting out that her mental health has had a significant impact upon her health.

I set out this material in some detail because this information, put together, suggests that CH would have greater difficulties than many in being able to articulate, remember, clarify and be clear about her daily living activities in the light of her various conditions (I have not set out her physical conditions here which would also impact upon her ability to focus and concentrate). In those circumstances, it was incumbent upon the Tribunal to think about how she could be best facilitated to give evidence, as it set out in the President’s Practice Direction on Child, Vulnerable Adult and Sensitive witnesses, paragraph 6, issued on 30 October 2008. The Practice Direction was, in AM (Afghanistan) v Secretary of State for Home Department and Lord Chancellor [2017] EWCA Civ 1323, the Court of appeal held that the directions “are to be followed” and “failure to follow them will most likely be an error of law “(per Sir Ernest Ryder at [30] and Gross and Underhill LJJ at [47] and [50].

In RT v SSWP (PIP) [2019] UKUT 207, Upper Tribunal Judge Poynter dealt with this Direction and what it means in practical terms for First Tier Tribunals (given the way that the Practice Direction is drafted to cross reference the Safeguarding Vulnerably Groups Act 2006, it would encompass practically every person who appears before the FTT in cases concerning sickness or ill health benefits). At paragraph 80 onwards, Judge Poynter gave advice on the practical implications for the work of the Social Entitlement Chamber. It identifies that the features of the Social Entitlement Chambers, with its inquisitorial jurisdiction, its focus upon practicality and a facilitative approach to questioning means it will not be necessary in the vast majority of cases to adapt these procedures for someone to be able to give evidence despite being a vulnerable adult (paragraph 86 of (RT)).

Judge Poynter encouraged First-tier Tribunals to do as follows at paragraphs 89 – 91):

“However, whether a failure to follow the Practice Direction is material falls to be decided on the facts of each individual case. The First-tier Tribunal would therefore be well-advised to adopt the practice of considering—as part of its preview of each appeal—whether special arrangements need to be adopted to facilitate the giving of evidence.

90.

Such arrangements might perhaps be no more than deciding that what would normally be regarded as an acceptable robust style of questioning was not appropriate in an individual case.

91.

In circumstances where special arrangements have been put in place—or where there might be doubt as to whether they should have been—it would be wise for the tribunal to record briefly in its record of proceedings that the Practice Direction had been considered. A single sentence should suffice. If a written statement of reasons is requested in such a case, the statement must then explain what the tribunal decided about the requirements of the Practice Direction and why”.

There is no reference to the Practice Direction having been considered on the facts of this case, despite there being considerable evidence from the papers that this may need to be considered. Consideration of this in advance, even if only quickly, may have led this Tribunal to alter its style of questioning and/or to seek to understand why CH may well be answering in the way that she did. It is not mentioned in the Statement of Reasons or Notice of Decision.

I note that Upper Tribunal Judge Poynter suggested that for the reasons he sets out in his judgment that the Practice Direction may require revision to avoid the difficulties inherent in the way that “vulnerability “is identified. I note that such a revision was announced on 29 July 2014. At the date of this judgment (25 February 2025) no such revision has been promulgated.

However, there have been considerable changes to the Practice Directions in other jurisdictions which represent the growing understanding of all the judiciary of the need to give due consideration to how people can participate fully and in depth consultation papers on how to manage such individuals within the civil justice system - see the Civil Justice Council Paper: Vulnerable Witnesses and Parties within Civil Proceedings: Current Position and Recommendations for Change (February 2020). In April 2021, the Civil Procedural Rules were amended. The overriding objective now sets out that dealing with a case justly includes ensuring that parties can participate fully, and that parties and witnesses can give their best evidence. A Practice Direction has been issued to support this change (Civil Practice Direction 1A. This adopts a very broad definition of vulnerability (paragraph 4 of the Practice Direction), and that if such vulnerability is in evidence, to consider their ability to express themselves in proceedings or put their evidence before the court, and to make appropriate provisions for such. In the Employment Tribunal, there guidance from the President issued in 2020 which gave guidance as to the nature and type of adjustments that may be required. The Family Procedure Rules has Practice Direction 3A and 3AA both of which deal with the participation of vulnerable persons (who are given a very wide definition) of individuals in family proceedings. The Equal Treatment Bench Book provides examples of the kinds of adjustments that can be made at different stages of proceedings (Chapters, 2, 4 and Appendix B).

Of most direct relevance to this case, there is a section in the Equal Treatment Bench Book on “Questioning Techniques to avoid”. This makes reference to the national training programme run for all those who appear in the criminal courts about advocacy for the vulnerable published by the Inns of Court College of Advocacy in 2022. I set out the relevant extract from the Equal Treatment Bench Book (2024 edn, Chapter 2) below as they may be useful to think about in proceedings before the social entitlement chamber. This says:

“The Inns of Court College of Advocacy have produced training for advocates which has also been used by the Judicial College, with a useful set of principles of questioning and conduct, which should normally be adopted. Before any topic is introduced, the witness should be given a headline telling them what the topic is, eg: “I am going to ask you questions about when you were nine”, or “I am going to ask you questions about what happened in the shed”. During questioning:

• Pronouns should not be used. When referring to a person, the name of the person should be used on every occasion.

• Questions should be simple and contain only one matter. There should be no compound questions.

• There should be no directive leading questions, also known as “tag” questions, which are both coercive and unnecessarily complex.113 A directive leading question (eg “You are lying, aren’t you?”) has been found to elicit significantly less accurate responses than a non-directive leading question (eg “Are you lying?”).Closed leading questions, where the question suggests an answer, should also be strictly limited and the responses may be of limited evidential value.”

I am not suggesting that each Tribunal needs to consider all of these points in every case. Far from it, and many of the techniques suggested (emanating here principally for use in the criminal courts) are already used on a day-to-day basis in the social entitlement chamber which is well used to dealing with people with disabilities and vulnerability. However, it does show that consideration should always be given to how someone can achieve their best evidence, and (if necessary) to use a variety of facilitative techniques to make reasonable adjustments so this can happen.

Neither the Civil Procedure Rules nor the Family Procedure Rules are directly applicable to the Social Entitlement Chamber and the formality of court proceedings, and its attendant jargon is largely absent in the First-tier Tribunal. However, given the focus in the Practice Direction and the ways in which the issue of vulnerability has been recognised and explored in many jurisdictions in the United Kingdom is a sign that these issues should be considered, discussed and acted upon.

I consider that the First Tier Tribunal made material errors of law in the way that it questioned CH, with such amounting to procedural unfairness.

Further, as identified above, I consider that the First Tier Tribunal failed to take account of material evidence given by CH in the answers she gave during the course of the FTT hearing, and so erred in law in the conclusions that it reached based upon a mistaken premise which was not borne out by the oral evidence given at the hearing.