LB v The Secretary of State for Work and Pensions

A tribunal must conduct proceedings fairly by taking practicable steps to ensure that a claimant can hear, understand and answer the questions put to them. Repeatedly moving on when a claimant seeks repetition or clarification may be a material procedural irregularity.

In a new-style ESA appeal, the tribunal must identify and apply the Employment and Support Allowance Regulations 2013. An unamendable, computer-generated reference in a decision notice to the 2008 Regulations is not, by itself, a material error. A statement of reasons which refers to the wrong legislation may nevertheless disclose a misdirection and must be scrutinised to establish which legislation was applied in practice.

LB claimed new-style employment and support allowance following difficulties arising from an ankle injury, osteoarthritis and asthma. The Secretary of State decided on 24 November 2022 that he neither satisfied the Schedule 2 point-scoring assessment nor fell within the exceptional-circumstances provision.

The First-tier Tribunal dismissed his appeal after a telephone hearing on 11 July 2023. Its decision notice and statement of reasons referred to the Employment and Support Allowance Regulations 2008, although the applicable legislation was the Employment and Support Allowance Regulations 2013.

On appeal, LB alleged inadequate reasoning on exceptional circumstances and his proposed operation, unfairness during the telephone hearing, and application of the wrong regulations. The central issue was whether those matters amounted to material errors of law.

1. Appeal allowed. The First-tier Tribunal’s decision involved material errors of law. It was set aside under section 12(2) of the Tribunals, Courts and Enforcement Act 2007 and remitted for a rehearing before a differently constituted tribunal.

2. The hearing was procedurally unfair. When LB asked for questions to be repeated or clarified, the medically qualified member repeatedly moved to different topics. Fair disposal under rule 2(2)(c) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 required the tribunal to pause, ensure that those participating could hear one another, and ensure that LB could answer the questions. The irregularity was capable of affecting, and did affect, the fairness of the hearing.

3. The tribunal gave inadequate reasons for rejecting exceptional circumstances. It did not explain why finding LB not to have limited capability for work would create no substantial risk to mental or physical health. It also failed to address his material contention that a planned operation might engage regulation 21 of the Employment and Support Allowance Regulations 2013.

4. The automatically generated reference in the decision notice to the Employment and Support Allowance Regulations 2008 was not, of itself, a material misdirection because the JCM system did not permit its removal. However, the statement of reasons evidenced a legal misdirection by failing to identify the applicable 2013 Regulations. On the particular provisions concerned, the error was immaterial because their wording was materially the same. That conclusion does not excuse a tribunal from identifying and applying the correct legislation.

5. The fresh tribunal must decide the claimant’s capability for work as at 24 November 2022. It may receive later evidence only insofar as it relates to circumstances obtaining at that date.

• Upper Tribunal (Administrative Appeals Chamber): allowed LB’s appeal, set aside the First-tier Tribunal’s decision, and remitted the case to a fresh tribunal.
• First-tier Tribunal (Social Entitlement Chamber): dismissed LB’s appeal and confirmed the Secretary of State’s decision on 11 July 2023.