RT v Secretary of State for Work and Pensions (PIP) (Tribunal procedure and practice - fair hearing)

Factual and Procedural Background

The Appellant, a 29-year-old diagnosed with Autistic Spectrum Condition, depression, anxiety, and agoraphobia, claimed personal independence payment ("PIP") on 14 September 2016. The Secretary of State for Work and Pensions decided on 10 November 2016 that the Appellant was not entitled to PIP, based on a paper-based assessment by a healthcare professional who did not see the Appellant face to face. After a mandatory reconsideration on 8 March 2017, the Secretary of State refused to revise the decision. The Appellant appealed to the First-tier Tribunal, which on 11 September 2017 confirmed the Secretary of State's decision. The Appellant then appealed to the Upper Tribunal with permission, supported by the Secretary of State.

Legal Issues Presented

1. Whether the First-tier Tribunal made a material error of law by failing to follow the Practice Direction concerning vulnerable adults when conducting the hearing.
2. Whether the definition of "vulnerable adult" in the Practice Direction, referencing the Safeguarding Vulnerable Groups Act 2006 ("SVGA"), remains applicable despite amendments and repeal of relevant provisions by the Protection of Freedoms Act 2012 ("PoFA").
3. How the Practice Direction's requirements should be applied in the context of appeals to the Social Entitlement Chamber, particularly regarding the necessity and materiality of special arrangements for vulnerable adults.
4. Whether the failure to consider and facilitate evidence-giving by a vulnerable adult amounts to a material error of law warranting setting aside the First-tier Tribunal's decision.

Arguments of the Parties

Appellant's Arguments

• The First-tier Tribunal hearing was conducted unfairly and in a confrontational manner, contrary to its inquisitorial and impartial function.
• The medically qualified member of the Tribunal repeatedly questioned the Appellant in a confrontational tone, including interruptions and statements presented as facts rather than questions.
• The disability-qualified member contributed to a "crossfire" of questioning and argued with the Appellant's representative during submissions.
• The conduct of the hearing inhibited the Appellant's full participation and indicated bias against him.

Secretary of State's Position

• The Secretary of State supported the appeal, implicitly acknowledging the First-tier Tribunal's material error of law in failing to follow the Practice Direction.

Table of Precedents Cited

Court's Reasoning and Analysis

The Upper Tribunal identified a material error of law in the First-tier Tribunal's decision due to failure to consider the Practice Direction on vulnerable adults. The Practice Direction requires tribunals to consciously consider how to facilitate evidence-giving by vulnerable adults, including the possibility of special arrangements such as giving evidence by telephone or video link.

The Court analysed the definition of "vulnerable adult" as set out in the Practice Direction, which references the Safeguarding Vulnerable Groups Act 2006 (SVGA). Despite the repeal and replacement of relevant SVGA provisions by the Protection of Freedoms Act 2012 (PoFA), the Court held that the reference in the Practice Direction remains to the original 2006 version. This conclusion was supported by principles of statutory interpretation under the Interpretation Act 1978 and precedent from Willows v Lewis.

The Court acknowledged that the original SVGA definition is over-inclusive, encompassing almost all adults receiving any form of health care, which practically includes most appellants before the Social Entitlement Chamber. While this broad definition risks undermining the utility of the Practice Direction, the Court emphasized that failure to follow it is a legal error.

However, the Court distinguished between material and immaterial errors of law in this context. In many cases, even if the Practice Direction is not followed, it will not amount to a material error if the failure did not affect the fairness of the hearing or the appellant's participation. The Court advised tribunals to consider special arrangements in advance and to record their consideration and decisions regarding the Practice Direction.

Regarding the conduct of the hearing, while the Appellant alleged unfairness and confrontational questioning, the Upper Tribunal did not decide on this issue directly because the more fundamental legal error regarding the Practice Direction warranted setting aside the decision.

The Court also highlighted the benefits of routine recording of hearings to resolve disputes about procedural fairness but noted this was not determinative in the present case.

Holding and Implications

The Upper Tribunal allowed the appeal, set aside the First-tier Tribunal's decision dated 11 September 2017, and remitted the case to a differently constituted First-tier Tribunal for full reconsideration in accordance with detailed directions, including compliance with the Practice Direction on vulnerable adults.

The directions require the new tribunal to hold an oral hearing with full reconsideration of all issues, consider special arrangements to facilitate evidence-giving by the Appellant, and ensure the Appellant's full participation. The Appellant and representative must submit any further evidence or requests for special arrangements within one month of receiving the decision.

The Court emphasized that success at this stage is due to a legal error, not an acceptance of entitlement to PIP, and that the new tribunal must consider the Secretary of State's decision as of 10 November 2016, without regard to subsequent changes in circumstances.

No new precedent was established beyond the application and interpretation of the Practice Direction and statutory provisions discussed. The decision underscores the critical importance of tribunals adhering to procedural safeguards for vulnerable adults to avoid material errors of law.