MR v Secretary of State for Work and Pensions

A tribunal which decides an appeal on the papers must give reasons why it can do so fairly and justly. The question must remain under review until the decision is made.

If the tribunal proposes to decide the case on a new and material matter which the claimant has had no fair opportunity to address, fairness may require an adjournment for written evidence, further submissions, or an oral hearing. Particular caution is required before rejecting evidence of functional limitation by drawing inferences from the treatment received, since there may be many reasons why a claimant is not receiving expected treatment.

The appellant challenged the First-tier Tribunal’s dismissal of his appeal against a decision that he was not entitled to the limited capability for work or limited capability for work-related activity elements of Universal Credit.

The First-tier Tribunal determined the appeal on the papers and found that the appellant had exaggerated his restrictions. It relied, among other matters, on assumptions about the distance he had walked in a supermarket car park before receiving a Blue Badge and on the nature of his treatment.

The Upper Tribunal considered whether the First-tier Tribunal could fairly determine the appeal on the papers without giving the appellant an opportunity to answer those credibility concerns.

1. Appeal allowed. The First-tier Tribunal made an error of law. Its decision was set aside and the appeal was remitted to a differently constituted First-tier Tribunal for an oral rehearing.

2. A tribunal deciding to proceed without an oral hearing must do more than state that it has considered the relevant rules and can determine the appeal fairly. It must give at least brief reasons why the conditions for a paper determination are met. The First-tier Tribunal’s statement was therefore inadequate.

3. The appropriateness of a paper hearing must be kept under review. Where a new matter arises during deliberations which is material to the outcome and which fairness would have required to be put to a claimant at an oral hearing, the tribunal should ordinarily adjourn so that the claimant can respond in writing, by further evidence, or at a further hearing.

4. The First-tier Tribunal unfairly relied on an unforeshadowed assumption that the appellant had walked some distance in a supermarket car park before obtaining a Blue Badge. It also unfairly rejected his evidence of function by reference to treatment which the tribunal expected him to receive, without allowing him to answer that concern. There may be many reasons why a person is not receiving particular treatment.

5. No finding was made as to entitlement to limited capability for work or limited capability for work-related activity. The new tribunal must determine the appellant’s circumstances at the date of the decision under appeal, 18 May 2023, for the closed period from 18 May to 15 August 2023.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for error of law, and remitted the matter for an oral rehearing before a new tribunal.
• First-tier Tribunal (Social Entitlement Chamber): On 4 September 2023, dismissed the appellant’s appeal against the Secretary of State’s decision of 18 May 2023 concerning entitlement to limited capability for work and limited capability for work-related activity elements of Universal Credit.