DF CSE 912 2013
| Jurisdiction | UK Non-devolved |
| Judge | Judge A J Gamble |
| Judgment Date | 16 February 2015 |
| Neutral Citation | 2015 UKUT 143 AAC |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Respondent | Secretary of State |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CSE 912 2013 |
| Appellant | DF |
THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
DECISION OF THE UPPER TRIBUNAL JUDGE
Before: A J GAMBLE
Attendances:
For the Appellant: (Claimant): The claimant was not present. He was represented by Mr Tom Muirhead.
For the Respondent: (Secretary of State): Mr Julius Komorowski, Advocate instructed by Ms Fiona Cavin, Solicitor, of the Office of the Solicitor to the Advocate General for Scotland.
The claimant’s appeal is allowed.
The decision of the Glasgow First-tier Tribunal of 16 May 2013 is set aside.
The case is remitted to the First-tier Tribunal (Social Entitlement Chamber) for redetermination by a freshly constituted tribunal in accordance with the directions in paragraph 29 of the Reasons. That tribunal should be different in composition both from that of 2 July 2012 and of 16 May 2013.
REASONS FOR DECISION
Background
1. The claimant is a fifty four year old man who has anxiety/depression and a visual problem. He was awarded employment and support allowance from 20 June 2010.
2. The claimant returned an ESA50 form dated 15 October 2010 to the Department. He was then examined by a registered medical practitioner on 22 November 2011. On 6 January 2012 a decision maker superseded the claimant’s entitlement to employment and support allowance from that date, having awarded him zero points under the limited capability for work assessment on the basis of the report of the medical examination of 22 November 2011.
3. The claimant appealed. The decision of 6 January 2012 was reconsidered on 13 February 2012 by another decision maker but not altered.
4. Accordingly the appeal proceeded. It was adjourned by a First-tier Tribunal on 19 April 2012. It proceeded to a hearing before another First-tier Tribunal on 2 July 2012 when they refused it and confirmed the decision maker’s decision of 6 January 2012.
5. The claimant then applied for permission to appeal to this tribunal. On 18 October 2012 I granted him permission. On 18 December 2012 Upper Tribunal Judge Agnew QC allowed the claimant’s appeal, set aside the tribunal decision of 2 July 2012 and remitted the case for a rehearing by a different tribunal. See his decision in CSE/573/2013, documents 160 – 161.
6. The claimant’s case was returned to the First-tier Tribunal in accordance with the directions in the decision of this tribunal. It was adjourned on 6 February 2013 by a First-tier Tribunal. It then proceeded to a hearing on 16 May 2013 when the tribunal once again confirmed the decision maker’s decision of 6 January 2012.
7. The claimant’s representative applied for permission to appeal to this tribunal against the First-tier Tribunal decision of 16 May 2013. District Tribunal Judge Kidd who had chaired the tribunal of 16 May 2013 refused permission to appeal on 30 October 2013. However on 3 March 2014 Upper Tribunal Judge Lunney granted the claimant permission to appeal.
8. On 14 May 2014 the claimant’s representative, Mr Muirhead, requested a hearing. On 19 May 2014 Upper Tribunal Judge Agnew QC directed one, documents 244 – 245, relating to the issues regarding human rights raised by Mr Muirhead in his written submissions. He also directed that intimation of these proceedings and of his direction for a hearing be made to the Equalities and Human Rights Commission (Scotland). That intimation was made. However the Equality and Human Rights Commission (Scotland) have not sought to enter these proceedings.
The oral hearing
9. The hearing took place before me on 4 December 2014 when representation was as narrated above. At the commencement of the hearing, Mr Komorowski adhered to the Secretary of State’s support of the appeal in paragraphs 21 – 23 of documents 219 – 220. That support, however, was limited to issues regarding the tribunal’s treatment of medical evidence and their approach to regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008. In his submissions in paragraphs 6 – 20 of documents 217 – 219 the Secretary of State resisted the claimant’s grounds of appeal based upon an alleged infringement of his human rights. Mr Komorowski also adhered to that position. Despite the Secretary of State’s limited support of the appeal, Mr Muirhead was eager to argue the human rights issues. Mr Komorowski indicated that he was prepared to do so also but in doing so would resist Mr Muirhead’s arguments. I consider given the terms of Upper Tribunal Judge Agnew’s QC’s directions of 19 May 2014, documents 244 – 245, that the claimant had at least a legitimate expectation that the hearing would deal with the human rights issues raised by Mr Muirhead in his written submissions. I proceeded on that basis. The claimant was not personally present at the hearing. However, Mr Muirhead was quite content that I should proceed in the claimant’s absence. I did so.
A preliminary issue
10. Early in the hearing Mr Muirhead moved that I should add the Secretary of State for Justice as a party under rule 9 of the Upper Tribunal Rules 2008 as his case based on human rights had important implications for the First-tier Tribunal (Social Entitlement Chamber) and this tribunal and the Secretary of State for Justice held ministerial responsibility for Her Majesty’s Courts and Tribunals Service who administer the above Tribunals. Mr Komorowski opposed Mr Muirhead’s motion. He submitted that an adjournment for the addition of the Secretary of State for Justice as a Second Respondent was unnecessary. He stated that the Secretary of State for Work and Pensions whom he represented was the contradictor to the claimant’s case on human rights issues as he had made clear in paragraphs 6 – 20 of his written submissions, referred to in paragraph 9 above. In practical terms he did not envisage that the Secretary of State for Justice would take a different position from that taken by the Secretary of State for Work and Pensions. Further, in McPherson v McPherson [1935] A.C. 177, a decision of the Judicial Committee of the Privy Council on appeal from the Appellate Division of the Supreme Court of Alberta, the question on whether a hearing in an undefended divorce in an Alberta court was in public or not was debated entirely between the parties to that litigation without the involvement of any representative of the authorities responsible for the administration of the courts in that province.
11. I found Mr Komorowski’s submissions telling. I rejected Mr Muirhead’s motion and decided not to adjourn to add the Secretary of State for Justice as a Second Respondent. I did not regard such a course as necessary as the representatives before me were well able and adequately prepared to debate the issues of human rights arising in these proceedings. Further, to have adjourned the oral hearing would have produced undue delay.
The human rights issues
12. In his skeleton argument as it was clarified and developed orally Mr Muirhead identified the following as the submissions on human rights issues which he wished to raise:
(i) The lack of any pre-publication of hearing lists before the First-tier Tribunal (Social Entitlement Chamber) and The Upper Tribunal (Administrative Appeals Chamber) means that the hearings conducted by those tribunals are not public hearings.
(ii) The locking by coded door locks of the tribunal rooms at Wellington House, a Glasgow Tribunal Centre, means that the First-tier Tribunal (Social Entitlement Chamber) hearings conducted there are not held in public.
(iii) In any event the tribunal rooms at Wellington House do not seem to be suitable for holding hearings in public.
(iv) The lack of a register of judgements of the First-tier Tribunal (Social Entitlement Chamber) which is open for public inspection represents a non-compliance with article 6 of the European Convention on Human Rights.
(v) The absence of a representative of the Secretary of State for Work and Pensions at a First-tier Tribunal (Social Entitlement Chamber) hearing means that the appeal cannot be determined in favour of the Secretary of State.
The course of the oral hearing
13. Mr Muirhead developed his argument in relation to the lack of any pre-publication of hearing lists both before the First-tier Tribunal and this tribunal. That argument is outlined in paragraph 23 below. Mr Komorowski responded. That response is narrated in paragraph 24 below.
14. As the legal debate proceeded Mr Muirhead increasingly concentrated on the lack of any pre-publicity of the hearing before me. He submitted that I should hold that hearing to be invalid and unlawful and that I should determine that issue first and separately from all other issues arising in these proceedings, whether relating to human rights, the merits or the facts and reasons stated by the tribunal of 16 May...
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