Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 223 (AAC)

Fecha: 12-Mar-2024

Conclusions

Conclusion

38.

It is for all of the above reasons that permission to appeal to the Upper Tribunal is refused.

Observations

39.

The First-tier Tribunal may wish to reflect on whether it was appropriate (or lawful) to require the appointee to repeat her request for a statement of reasons. I understand the appointee’s feeling of grievance about that.

40.

In its 3 April 2024 Directions Notice, the First-tier Tribunal responded to what it found to be an in-time request from the appointee for a statement of reasons. I have reproduced the Directions Notice in the annex to this decision.

41.

After setting out 11 paragraphs of potential future procedure, the First-tier Tribunal went on in the Directions Notice to say—

“You can see from the various steps that are possibly involved, this process can take a very long time – possibly up to 12 months or even longer”.

42.

The Directions Notice then gave the following direction—

“Within 3 weeks of the date that this Notice is issued, please write to the Tribunal (an email is fine) to confirm either:
(a)
That you do wish for a SoR to be produced; or
(b)
That you wish to withdraw your application for a SoR”.

43.

The Directions Notice warned that the application for a statement of reasons may be struck out absent compliance with that direction.

44.

The Directions Notice gives the appearance of seeking – over 11 paragraphs – to dissuade the appointee from seeking a statement of reasons.

45.

The Directions Notice appears to suggest, as its motivation, a concern about the trouble the appointee would go to in seeking to appeal the First-tier Tribunal decision and in potentially successfully appealing and securing remittal. But such a concern would not need to – nor should it – save the tribunal the trouble of preparing the statement of reasons. Merely receiving the statement of reasons would not cause the appointee to seek to appeal the First-tier Tribunal’s decision or cause her to put herself to more trouble.

46.

Moreover, the direction and strikeout warning were misconceived. The appointee had made an in-time application for a statement of reasons and had not withdrawn it. So the application remained pending before the First-tier Tribunal. The application did not need to be made again to be so pending and to have the effect provided for by the rules. Equally, the appointee did not have to say that she did not withdraw the application for the application to have the effect provided for by the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (S.I. 2008/2685). The effect provided for by those rules was that the First-tier Tribunal was required by rule 34(5) to supply a statement of reasons—

“(5)
If a party makes an application in accordance with paragraphs (3) and (4) the Tribunal must, subject to rule 14(2) (withholding information likely to cause harm), send a written statement of reasons to each party within 1 month of the date on which it received the application or as soon as reasonably practicable after the end of that period.”.

47.

The Directions Notice placed conditions on the entitlement conferred by rule 34(5), beyond the condition already contained in that rule.

48.

The appointee in this case was not dissuaded from seeking the statement of reasons to which she was entitled. But it is concerning that there could be other cases in which claimants are being so dissuaded by directions along the lines of those given on 3 April 2024 by the First-tier Tribunal in this case.

49.

It is because of my observations at paragraphs 39 to 48 above that I am having this decision published.

Rachel Perez

Judge of the Upper Tribunal

28 July 2024

Annex to Upper Tribunal decision

First-tier Tribunal’s 3 April 2024 Directions Notice

“DIRECTIONS NOTICE

Reference to page numbers of the appeal bundle appear in square brackets ‘[ ].

Additions e.g. Addition D, pages 1-4 are shown as [D1-4].

BACKGROUND

1. Mrs [OU] is the appointee for her daughter, [SRU]. OU appealed against a decision made by the DWP about SRO’s [sic] claim for Disability Living Allowance (DLA). On 12.3.24 the Tribunal made a decision on the appeal [Z1]. That decision was made following a hearing on the same day. OU attended the hearing (together with her husband) and provided oral evidence.

2. On 15.3.24 the Tribunal received a short email from OU [Z2] in which OU applied for a Statement of Reasons (SoR) for the Tribunal’s decision. That application was made within the time limit set out in the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (TPR).

3. The decision made by the Tribunal was to refuse OU’s appeal and confirm the decision made by the DWP that [SRU] did not meet the conditions for an award of DLA.

DIRECTIONS

To Mrs [OU]:

4. I am making a direction to you towards the end of this notice. Before I set that out, I have taken some time to set out some important information which I hope will help you consider what you wish to do.

5. At this stage, I am staying (putting on hold) your application for a SoR so that you can have an opportunity to consider what I have explained in this Notice and then decide what you would like to do.

6. As explained above and as you are aware, the decision that was made was taken following a hearing which you attended. If you want to challenge the decision that was made, first of all a SoR would need to be produced, you would then need to consider that and make an application for PtA to the UT. That would be considered by me in the first instance. If I found that the decision was made in error of law then I would review the decision. Following the review, it is quite likely that I would not be able to re-make the decision of 12.3.24 and so I would set aside the decision and direct that a new Tribunal panel consider the appeal afresh which would include a new hearing.

7. If I was to refuse PtA to the UT and if you were not happy about that, you could [sic] then need to renew your application for PtA directly to the UT. The UT would then need to consider the application and make a decision about whether to grant or refuse PtA. If it granted PtA then the UT would have to go on to decide whether the appeal should be allowed (succeed). If it decided that the appeal should be allowed, again it is quite likely that the UT would not be able to re-make the decision of 12.3.24 but instead the UT would set aside the Tribunal’s decision and remit (return) the appeal to the Tribunal so that a new Tribunal panel can consider the appeal afresh. You can see from the various steps that are possibly involved, this process can take a very long time - possibly up to 12 months or even longer.

8. Please bear in mind that if the Tribunal’s decision were to be set aside by me or the UT, there is no guarantee of any particular outcome as a new panel will be charged with making a new decision. That new panel will decide the entire appeal afresh. That panel may come to the same decision as that made on 12.3.24.

9. I remind you of what was explained in the Decision notice:

“We found that during the period we had to consider, [SRU] did not meet the legal eligibility conditions for an award of either component of DLA. We know that [SRU] has health conditions and we know that these impact her, however having considered all the evidence (including all of Ms [OU’s] oral evidence) we found on the balance of probabilities that [SRU] is not so restricted for the majority of the time to be eligible for DLA.

Ms [OU] told us that things for [SRU] at the present day [are] [sic] worse now. If that is so, then Ms [OU] may wish to consider making a new claim for DLA. We were naturally limited to considering only how matters for [SRU] stood around the time the DWP made the decision under appeal.”

10. The Tribunal on 12.3.24 had to look at how things were around the time the DWP made the decision rather than how things were at the date of the hearing itself on 12.3.24. If things got worse after the DWP’s decision was made, that does not mean that the Tribunal’s decision was wrong. During the hearing, you told us that [SRU’s] asthma had got worse and more recently she had many hospital admissions. Given what you said about things being worse for [SRU] more recently, you may want to consider contacting the DWP make [sic] a new claim for DLA as the DWP will then have to look at [SRU’s] current circumstances. If you do this the DWP will arrange for a new assessment to be carried out (to assess [SRU’s] current circumstances) and it will make a new decision. Of course, if you are dissatisfied with that decision, you will have a right to mandatory reconsideration and then a right of appeal to the Tribunal.

11. You may wish to make a new claim for DLA while at the same time seeking to challenge the Tribunal’s decision of 12.3.24.

12. Please be aware that the points which are made above do no more than set out the relevant legal position. Those points do not comment on the merits of any action you decide to take.

13. DIRECTION TO MRS [OU]: Within 3 weeks of the date that this Notice is issued, please write to the Tribunal (an email is fine) to confirm either:

(a) That you do wish for a SoR to be produced; or

(b) That you wish to withdraw your application for a SoR.

14. If you do not comply with the direction above by the time limit, you are warned that the application for a SoR (which is currently stayed) may be struck out on the basis that you have not complied with a direction of the Tribunal and that direction provided a warning to you about a possible striking out of part of the proceedings.

To the Tribunal clerk:

15. Please refer the file to DTJ [name of judge] for interlocutory consideration after compliance with these directions or in default, 3 weeks after the date this Notice was issued.

A party is entitled to challenge any direction given by applying for another direction which amends, suspends or sets aside the first direction. The Appellant may wish to seek advice from a welfare rights organisation, Citizens Advice or a law centre.”

[End of annex to Upper Tribunal decision]