GS v Secretary of State for Work & Pensions

A tribunal errs in law where its reasons fail to address material oral evidence from a witness. The reasons must enable the affected party to know whether that evidence was accepted or rejected and, if rejected, why.

A decision-maker cannot ordinarily cure that defect, when its decision is challenged, by supplying substantially new reasons which were absent from the original decision. Where the inadequacy may have affected the decision, the proper course may be to set it aside and remit the appeal for a fresh hearing before a differently constituted tribunal.

The appellant challenged a First-tier Tribunal decision dismissing his appeal against a Universal Credit decision made on 14 October 2021.

His wife attended the First-tier Tribunal hearing and gave oral evidence. The tribunal's statement of reasons recorded her attendance but did not address her evidence. When refusing permission to appeal, the judge who had chaired the hearing gave reasons for treating that evidence as unreliable.

The Upper Tribunal granted permission on the issue whether the First-tier Tribunal had failed to make findings about the wife's evidence. The Secretary of State supported the appeal and invited the Upper Tribunal to set aside and remit the case.

1. Appeal allowed. The First-tier Tribunal's decision involved an error of law. Its reasons did not deal with the appellant's wife's oral evidence, despite recording that she attended the hearing. The appellant could therefore not know whether her evidence had been accepted or rejected, or the reasons for any rejection.

2. The omission was material because a tribunal deciding the appeal had to give adequate reasons for its treatment of relevant evidence. The failure to make findings about the wife's evidence rendered its decision erroneous in law.

3. The judge's later reasons, given when refusing permission to appeal, could not cure the defect. It was uncertain whether those were reasons of the original two-member panel. In any event, their treatment of the wife's evidence was substantially new. Applying R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2007] EWCA Civ 498, they were impermissible new reasons rather than part of the tribunal's original explanation.

4. Under Tribunals, Courts and Enforcement Act 2007, section 12(2)(a), the decision was set aside. The case was remitted under section 12(2)(b)(i) for redetermination by a differently constituted First-tier Tribunal after a hearing. The rehearing must determine entitlement by reference to circumstances as at 14 October 2021, subject to the admissibility of later evidence relevant to those circumstances.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal decision for error of law, and remitted the case for a fresh hearing before a differently constituted panel.
• First-tier Tribunal (Social Security and Child Support): On 13 July 2022, in case reference SC 154/22/00623, dismissed the appellant's appeal against the Secretary of State's Universal Credit decision.