[2024] UKUT 271 (AAC)

The FTT in it’s written reasons at paragraph 3 states: “…At the start of the hearing the Appellant was observed to walk into the tribunal room at a reasonable pace and with normal gait. She was not using a walking aid.”. At paragraph 4(ii) the FTT further state: “She indicated that she could not weight bear on one leg, but had not been apparent from the manner in which she had walked into the tribunal room…” It is not clear what the FTT were inferring when making the observations, specifically given that the Tribunal hearing was 9 months after the date of claim. In my view, it is clear the FTT did attach weight to its observations of the claimant on the day of the hearing. What is not clear is whether it gave the claimant the opportunity to address this as this is not referred to in the written reasons. This is a further error of law. The FTT should have afforded the claimant the opportunity to address inferences drawn by it from its observations on the day of the hearing which it intended to rely on and which were material to its findings of fact. Failure to do this is, at the very least, a breach of the principles of natural justice. On this point note the helpful guidance set out by Upper Tribunal Judge Wikely in K.H. (by C.H.) -v- SSWP (DLA) [2022] UKUT 303 (AAC) and the principles adumbrated by Judge Poole QC (as she was then) in CC v Secretary of State for Work and Pensions [SSWP] (ESA) [2019] UKUT 14 (AAC).