SJC v The Secretary of State for Work and Pensions (PIP)

A tribunal must ensure that a hearing is fair in light of a party’s acknowledged communication difficulties. It must consider whether the chosen mode, including a telephone hearing, is fair and whether reasonable adjustments are required. This includes considering how the party may be assisted when giving evidence. Failure to consider those matters, or to have regard to the Practice Direction on child, vulnerable adult and sensitive witnesses where relevant, may constitute a material error of law.

The appellant appealed against a First-tier Tribunal decision concerning entitlement to Personal Independence Payment under Part 4 of the Welfare Reform Act 2012 and the Social Security (Personal Independence Payment) Regulations 2013. The First-tier Tribunal held a telephone hearing despite evidence of difficulties communicating by telephone associated with ADHD and dyslexia. It awarded two additional points, but this did not produce an award of PIP.

The Upper Tribunal considered whether the hearing had been fair, whether the telephone mode was appropriate, whether reasonable adjustments should have been made, and whether the relevant Practice Direction had been considered.

The appeal was allowed. The First-tier Tribunal’s decision involved an error of law and was set aside under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007.

1. The First-tier Tribunal knew that the appellant had difficulty speaking on the telephone. It therefore needed to consider adjustments to its usual process, including whether his mother should assist him more actively during his evidence.

2. A tribunal must assess whether it is fair to proceed by the selected mode of hearing. That assessment is required at the start of the hearing and throughout it. A tribunal cannot assume that a telephone hearing is fair where a party has difficulty dealing with telephone calls.

3. The Tribunal also failed to consider the Senior President of Tribunals’ Practice Direction on ‘Child, Vulnerable Adult and Sensitive Witnesses’. The Practice Direction requires consideration of whether evidence is necessary, whether the witness’s welfare would be prejudiced, and how evidence should be facilitated.

4. Following RT v Secretary of State for Work and Pensions (PIP) [2019] UKUT 207 (AAC), vulnerable adult may in principle include anyone receiving any form of healthcare. Where material to the appeal, failure to follow the Practice Direction will normally constitute an error of law.

5. The case was remitted for an oral rehearing before a different First-tier Tribunal. The new tribunal was not bound by the earlier decision and had to assess the appellant’s circumstances at the date of the Secretary of State’s decision.

• Upper Tribunal (Administrative Appeals Chamber): Appeal allowed; the First-tier Tribunal decision was set aside and the case remitted to a fresh tribunal.
• First-tier Tribunal (Social Entitlement Chamber): The tribunal heard the appeal by telephone, awarded two additional points, but confirmed that the appellant was not entitled to PIP. Permission to appeal was refused.