[2025] UKUT 348 (AAC)

Dissatisfied with the refusal to set aside the FtT Decision, the claimant applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal. That application was dismissed by a salaried Tribunal Judge. The claimant then exercised her right to apply to the Upper Tribunal for permission to appeal and the matter came before me.

I granted permission to appeal. In my grant of permission (which was addressed to the claimant) I explained my reasons for granting permission as follows:

“9.

Your representative said that the judge at the hearing before the Tribunal was dismissive of the bulk of your reasons for appealing the SoS Decision and “dismissed out of hand” what you had said about your attempts to get a copy of the ESA85 report that had resulted in an award of ESA with the support component, and which you thought could be pivotal evidence in support of your PIP appeal. She argued that the judge’s “dismissive” attitude was evidenced in paragraphs [29] and [31] of the Tribunal’s statement of reasons, in which the Tribunal said that entitlement to ESA “doesn’t automatically bring an entitlement to PIP, which is assessed separately and under different criteria. ESA assesses fitness to work and that is not relevant to the qualifying criteria for PIP (paragraph [31] of the statement of reasons).

10.

Your representative explained that she requested the audio recording of the hearing before the Tribunal because what was said in the statement of reasons didn’t reflect her recollection of the hearing, but the audio recording covered only part of the hearing before the Tribunal. She said that the judge eventually produced a written account of the hearing some 4 months after the statement of reasons had been issued, and you had been told that this written account would stand as the record of proceedings.

11.

The Tribunal had a broad discretion as to how it assessed the evidence. While you felt that the judge was “dismissive” of your arguments and evidence, it had a broad discretion in how it assessed your evidence, what it accepted and what it didn’t. It was required to give reasons for its decision, but it didn’t have to refer to every argument put to it or every piece of evidence relied upon. The Tribunal was correct to say that an award of ESA doesn’t necessarily indicate that an award of PIP is indicated.

12.

However, I am persuaded that it is arguable with a realistic prospect of success that:

a.

the failed recording of the hearing amounted to a material procedural irregularity because:

i.

it resulted in there being no complete record of proceedings; and

ii.

the lack of a complete record of proceedings prevented you from being able to demonstrate to me that the judge was “dismissive” of your arguments and evidence;

b.

the Tribunal failed to give proper consideration to adjourning the hearing to obtain a copy of the ESA 85 which you had been seeking, or it failed adequately to explain why it decided that it was not in the interests of justice to adjourn for that purpose.

13.

The appeal raises the issue of potentially wide application of what amounts to a record of proceedings in the context of a hearing before the First-tier Tribunal (Social Entitlement Chamber), and in particular whether the written record produced by the judge from their notes of the hearing was indeed the record of proceedings, as you were told.

14.

This warrants a grant of permission to appeal to the Upper Tribunal.”

I made Case Management Directions for the parties to make submissions on the substantive appeal and to indicate whether they requested an oral hearing.