[2025] UKUT 220 (AAC)

I read the paper file and I listened to the audio recording of the hearing.

The main issue in the appeal was the extent to which the claimant’s mental health condition prevented him from planning and following journeys to familiar and unfamiliar places.

First of all, I should say that the recording of the hearing reveals that the judge took care to make sure that the claimant and the interpreter were able to understand each other, and he explained clearly what the claimant could expect from the hearing. The judge sought to put the claimant at his ease. The judge explained to the claimant that the Tribunal needed to understand how his health problems affected him up to 3 October 2022 (and not after that date), because that was the date when the Secretary of State made the decision under appeal. The claimant was reminded periodically to cast his mind back to the period around October 2022.

I was particularly impressed by the medical member’s skilful, clear and respectful questioning of the claimant, which maximised his ability to participate in the hearing and to give his best evidence. Her questioning allowed her to gather evidence relevant to the activity of planning and following journeys.

About 50 minutes into the recording of the hearing there was an exchange between the judge and the claimant, and an intervention by the claimant’s representative:

“Judge: For the sake of clarity, when you arrived in the UK in 2019 how did you travel here?

Claimant: It wasn’t in 2019

Judge: Sorry, when was it then?

Claimant: It was 25^th of the 10^th 2016

Judge: Right, okay, well how did you arrive in the UK on 25^th of the 10^th 2016?

Claimant By bus, by coach. By coach and then submarine

Judge: Submarine?

Claimant: Yes, because you have to take the submarine.

Judge: Right OK, I’m not quite understanding this. You arrived in the UK illegally.

Claimant: Eurotunnel

Judge: Did you travel accompanied?

Claimant: The French embassy as well, when they needed to identify you … so they would let us pass through the borders, so we could come over here.

Judge: Why did you come over here?

Rep: Why is that relevant, judge?

Judge: I think it’s relevant. That’s why I’m asking.

Rep: Why?

Judge: I don’t need to justify myself to you, Mr Kane. I’m asking the questions and you can make whatever you wish of it.

Why did you come here? You came here to work.”

It was perfectly proper for the claimant’s representative to ask what the relevance of the judge’s line of questioning was to the issues in the appeal. The appeal was about whether the claimant satisfied the entitlement conditions to an award of a Personal Independence Payment on 3 October 2022.

The representative’s polite and professional question as to the relevance of the questions provided the judge with an opportunity to explain why he considered his questions to be relevant.

He did not take that opportunity, saying simply that he did consider the questions to be relevant. However, the decision notice relating to the FtT Decision refers to the representative’s intervention, and provides the Tribunal’s rationale for the line of questioning pursued by the judge:

“LQPM – The appellant said that when [sic] he came to the UK on 25/10/16 and he had come by coach and then through the Euro tunnel. He said he was accompanied by his mother. He said he came here to work. At that point his representative complained that the LPQM should not ask that question (The appellant had said that he did not use public transport and the LWPM wanted to establish whether he had arrived by plane/boat/coach. In addition it was recorded in the HCP report that he had worked in the UK).

The Tribunal’s rationale was explained further in paragraph 1.4 of its statement of reasons as follows:

“The Appellant’s tendency to change his evidence apparently “on the hoof” tended to undermine his credibility. The Appellant now told the MQPM that he had never travelled by public transport. However he later stated that he had arrived in the UK illegally in 2019 and then changed his mind and said it had been in 2016 by coach, which had come through the Channel tunnel. The point of this was that a coach is “public transport”, and the Appellant had claimed that he had never travelled by public transport. The Appellant then told the MQPM that he had travelled by bus in 2020/21 with his mother to visit his sister.”

This rationale is flawed in two significant respects. First, the claimant’s ability to travel on a plane, boat or coach in 2016 would tell the Tribunal nothing about the extent to which the claimant’s fluctuating mental health condition affected his ability to plan and follow journeys in 2022, some six years later.

Second, the Tribunal relies on the inconsistency between the claimant’s assertion that he does not use public transport due to anxiety and his evidence that he came to the UK by coach as undermining his credibility. However, this perceived inconsistency is too slight to justify a conclusion that the claimant was an unreliable witness. A statement that someone does not use public transport need not be interpreted so literally as to make it incompatible with the making of a single journey by a form of public transport six years before the period relevant to the questioning.

Further, there is no clear rationale for the judge asking why the claimant came to the UK, and whether he came to the UK to work.

The line of questioning pursued by the judge persuades me (on the balance of probabilities) that the Tribunal took into account irrelevant factors in reaching its decision. It also raises the spectre of bias.

Because the judge raised irrelevant matters relating to the claimant’s immigration history, there is a risk that his questioning created an appearance of bias.

The legal test for apparent bias was set out in Porter v Magill [2002] 2 AC 357:

I reluctantly conclude that a fair minded and informed observer might well consider the judge not to have been impartial, not because of any financial or other personal interest in the outcome of the proceedings, nor because of any personal antipathy towards the claimant, but rather due to the possibility that he might hold views about immigration that might influence his decision making on this immigrant’s benefit claim.

Further still, the Upper Tribunal has explained on multiple occasions that a claimant’s ability to carry out the activities contemplated by the Personal Independence Payment descriptors must be assessed holistically over the entirety of the relevant assessment period in accordance with the requirements of Regulations 7(1A) and 13 of the Social Security (Personal Independence Payment) Regulations 2013, and not on the basis of a single “snapshot” event such as a single journey.

Given the nature of the errors I have identified, I am satisfied that they are material, in the sense that had they not been made the outcome of the appeal might have been different. This warrants the setting aside of the FtT Decision.