MM v Secretary of State for Work and Pensions

A tribunal determining entitlement to social security benefit must comply with the equality of arms requirement under Article 6(1). It must consider whether a claimant has had a reasonable and fair opportunity to present the case, without substantial disadvantage compared with the opposing party.

Where delay attributable to the other party, mental-health difficulties, medication, deterioration after the relevant date, and insufficient contemporaneous evidence create a real fairness issue, the tribunal must turn its mind to measures that may remedy the disadvantage. A failure to do so is material where it may have affected findings on the claimant’s functioning at the relevant date.

The claimant appealed against a First-tier Tribunal decision refusing entitlement to personal independence payment. The relevant date was 30 April 2014, but there had been a substantial delay before the appeal proceedings began and the hearing took place about ten months after the original refusal.

The claimant attended the hearing without adequate evidence concerning his mental health at the relevant date. He was taking significant medication, including medication for psychosis, and maintained that his condition had deteriorated after that date. The Secretary of State supported the appeal, submitting that the First-tier Tribunal should have considered an adjournment to enable representation and contemporaneous medical evidence to be obtained.

The central issue was whether the First-tier Tribunal had failed to ensure that the claimant had a reasonable opportunity to present his case consistently with Article 6(1) of the European Convention on Human Rights.

1. Appeal allowed. Judge Mitchell held that the First-tier Tribunal had made a material error of law. Its decision was set aside and the appeal was remitted to a differently constituted First-tier Tribunal for rehearing.

2. Under section 6(1) of the Human Rights Act 1998, the First-tier Tribunal had to act compatibly with the claimant’s Convention rights. The determination of entitlement to a social security benefit concerned a civil right for Article 6(1) purposes. The equality-of-arms aspect of that article required a fair balance between the parties and a reasonable opportunity for each to present the case without substantial disadvantage.

3. The circumstances raised a real issue of procedural fairness. They included the claimant’s apparent thought-disorder difficulties and medication; his asserted deterioration after the relevant date; the consequent difficulty of giving reliable retrospective evidence; the absence of mental-health evidence; and six months’ delay by the opposing party in initiating proceedings. That delay might have improved the Secretary of State’s position while impairing the claimant’s ability to prove his condition at the relevant date.

4. The First-tier Tribunal was therefore required to consider whether the claimant had had a reasonable opportunity to present his case and, if not, what measures were needed. Possible measures included an adjournment, obtaining representation, or obtaining reliable contemporaneous evidence from GP records. The Upper Tribunal did not prescribe the particular response required.

5. The omission was material because the First-tier Tribunal had made no clear findings about the nature, severity, or functional effects of the claimant’s mental health at the date of the decision. On remittal, the new panel was directed to reconsider the Secretary of State’s decision of 30 April 2014 without relying on the set-aside panel’s reasoning or factual findings.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the claimant’s appeal, set aside the First-tier Tribunal decision under sections 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007, and remitted the case for rehearing.
• First-tier Tribunal: At Haverfordwest on 11 February 2015, dismissed the claimant’s appeal against the Secretary of State’s decision of 30 April 2014.