MM v The Secretary of State for Work and Pensions

When deciding whether to determine an appeal on the papers, the First-tier Tribunal must apply rules 2 and 27 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008. It must establish that no party has requested an oral hearing and then decide whether, having considered the case, fairness and the overriding objective permit determination without one. Its reasons need not be lengthy, but must engage with material evidence and circumstances, including any stated willingness to participate in a remote hearing and any credibility concerns requiring clarification. Evidence obtained after the decision under appeal remains admissible where it relates to circumstances existing at the relevant date. A failure to address these matters may constitute a material error of law requiring remission.

The appellant claimed personal independence payment. The Department for Work and Pensions refused an award, and the First-tier Tribunal dismissed her appeal after determining it on the papers on 14 March 2024. The appellant appealed to the Upper Tribunal. The Secretary of State supported the appeal, accepting that the First-tier Tribunal had failed adequately to explain its decision to proceed without an oral hearing and had failed to address material evidence concerning mental health and later-prescribed medication. The issues were whether those matters amounted to material errors of law and, if so, whether the appeal should be remade or remitted.

1. The appeal was allowed. The First-tier Tribunal’s decision was set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, and the case was remitted for rehearing by a fresh tribunal.
2. Rule 27(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 emphasises that the tribunal must hold a hearing unless satisfied of the conditions in rule 27(1)(a) and (b). Applying the three-stage approach identified in MH v Pembrokeshire CC [2010] UKUT 28 (AAC):
   1. the case may initially be placed before the tribunal for consideration on the papers;
   2. the tribunal must then judicially establish that no party has requested an oral hearing; and
   3. after considering the case, it must decide whether to determine it or adjourn for an oral hearing or further evidence, applying the overriding objective.
3. The First-tier Tribunal’s reasons need not be lengthy, but they must engage with the information and evidence before it. In this case, the tribunal needed to address the appellant’s stated willingness to participate in a video hearing, its own concerns about inconsistencies in the written evidence, and the wording of the HMCTS notification available in the Judicial Case Manager system. The notification’s failure to mention video hearings did not restrict the tribunal’s discretion, but formed part of the factual matrix.
4. The tribunal also failed adequately to evaluate evidence about the appellant’s mental health. Its treatment of sertraline prescribed after the decision date appeared to apply section 12(8)(b) of the Social Security Act 1998 incorrectly. Later evidence remains admissible where it relates to circumstances existing at the date of the decision: see R(DLA) 2/01 and R(DLA) 3/01.
5. The Upper Tribunal declined to remake the decision because further findings of fact were required and the First-tier Tribunal, including its medically and disability-qualified members, was better placed to evaluate the evidence. The fresh tribunal was to decide entitlement to personal independence payment independently, without being bound by the previous tribunal’s decision.

• First-tier Tribunal (Social Entitlement Chamber): dismissed the appellant’s personal independence payment appeal after determining it on the papers on 14 March 2024.
• Upper Tribunal (Administrative Appeals Chamber): found material errors of law, set aside the First-tier Tribunal’s decision and remitted the case to a fresh tribunal for an oral rehearing.