Factual and Procedural Background
This opinion concerns an appeal by the Appellant against a decision of the First-tier Tribunal (Social Entitlement Chamber) dated 29 November 2011. The First-tier Tribunal had upheld a decision by the Secretary of State for Work and Pensions dated 5 March 2011, which found that the Appellant did not have limited capability for work and was therefore not entitled to Employment and Support Allowance (ESA) from that date.
The appeal to the Upper Tribunal was based on the contention that there was an error of law in the First-tier Tribunal’s decision, specifically relating to the non-disclosure of a previous ESA85 medical report dated May 2010. The Upper Tribunal Judge Wright allowed the appeal, set aside the First-tier Tribunal’s decision, and referred the matter back to a differently constituted First-tier Tribunal for a fresh hearing.
Legal Issues Presented
- Whether there was a breach of natural justice and the Appellant's right to a fair hearing under article 6(1) of the European Convention on Human Rights due to the failure to put before the First-tier Tribunal a previous ESA85 medical report from May 2010.
- Whether such a breach could arise even if the Appellant had the previous ESA85 medical report but did not present it to the First-tier Tribunal.
Arguments of the Parties
Secretary of State's Arguments
- The Secretary of State supported the appeal on the ground that the burden of proof was on the Secretary of State to provide all relevant documents, including previous ESA85 medical reports, to the Tribunal.
- The failure to provide the May 2010 ESA85 report to the Tribunal was an error of law because the Tribunal did not have all relevant evidence to properly assess the appeal.
- The Secretary of State acknowledged that the Tribunal should have had regard to the May 2010 medical report as it was material to the decision on limited capability for work.
Appellant's Arguments
- The Appellant did not object to the decision being set aside and remitted to a new Tribunal.
- The Appellant’s representatives indicated that the Appellant only became aware of the significance of the May 2010 ESA85 report after receiving the First-tier Tribunal’s decision and subsequently provided it to the Tribunal.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Salesi v Italy (1993) 26 EHRR 187 |
Establishes that appeals concerning entitlement to benefits engage civil rights under article 6(1) of the Convention. |
Confirmed that the Appellant’s appeal concerned civil rights and thus article 6(1) applied. |
| R-v-Medical Appeal Tribunal (North Midland Region), ex parte Hubble [1958] 2 QB 228 |
Social security appeal proceedings are inquisitorial, not adversarial. |
Supported the view that the Secretary of State has a duty to assist the Tribunal by providing all relevant information. |
| Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 |
The benefits system aims to ensure entitlement is correctly paid and not exceeded. |
Emphasised the cooperative nature of social security adjudication. |
| Kerr v Department of Social Development [2004] UKHL 23 |
Obligation on the Department to provide all relevant information it holds in benefit entitlement investigations. |
Applied to clarify the Secretary of State’s duty to provide relevant documents to the Tribunal. |
| CIB/3985/2001 |
Requirement to inform the Tribunal of previous decisions relevant to the appeal. |
Supported the duty to disclose previous limited capability for work decisions or assessments. |
| CIB/1509/2004 |
Clarifies that receipt of medical evidence is necessary but not sufficient for supersession decisions. |
Used to explain the need to consider contents of medical reports and other evidence in determining limited capability for work. |
Court's Reasoning and Analysis
The Upper Tribunal Judge Wright found that the First-tier Tribunal’s decision was legally erroneous due to a breach of the Appellant’s right to a fair hearing under article 6(1) of the European Convention on Human Rights. This arose because the Tribunal did not have before it the May 2010 ESA85 medical report, which was relevant to the assessment of the Appellant’s limited capability for work.
The Judge explained that social security appeal proceedings are inquisitorial, requiring the Secretary of State to provide all relevant documents in their possession to the Tribunal. This duty is grounded in both statutory rules (Tribunal Procedure Rules 2008, rule 24(4)(b)) and the Human Rights Act 1998, which incorporates article 6(1) rights.
The Secretary of State’s failure to disclose the May 2010 ESA85 report or to inform the Tribunal of the prior limited capability for work decision amounted to a fundamental procedural irregularity. This omission misled the Tribunal by causing it to proceed on an incomplete and false premise about the relevant prior decisions and evidence.
The Judge rejected the argument that only the latest medical report (dated February 2011) was relevant to the supersession decision. Instead, the entire context and all relevant medical evidence must be considered to determine whether the Appellant has limited capability for work.
Furthermore, even if the Appellant had possession of the previous ESA85 report, the Secretary of State’s duty to disclose relevant documents remains, except in rare cases where the Appellant explicitly relies on the previous report in their appeal. In this case, there was no evidence the Appellant had the report at the time of the original Tribunal hearing.
Accordingly, the Upper Tribunal concluded that the First-tier Tribunal’s decision was vitiated by an error of law and must be set aside.
Holding and Implications
The Upper Tribunal ALLOWS the appeal, SETS ASIDE the decision of the First-tier Tribunal, and REMITS the appeal for rehearing before a differently constituted First-tier Tribunal.
The direct effect is that the Appellant’s entitlement to Employment and Support Allowance must be reconsidered afresh with all relevant evidence properly before the Tribunal, including the May 2010 ESA85 medical report. No new precedent is established beyond clarifying the Secretary of State’s duty to disclose all relevant documents to ensure a fair hearing under article 6(1) of the Convention.