MCB v Secretary of State for Work and Pensions

As the decision of the First-tier Tribunal involved the making of an error of law, it is SET ASIDE under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 (the “2007 Act” ) and the case is REMITTED to the First-tier Tribunal under section 12(2)(b)(i) for rehearing before a differently constituted panel. DIRECTIONS FOR THE REHEARING

1. The First-tier Tribunal must (by way of an oral hearing) undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the First-tier Tribunal’s discretion under Section 12(8) (a) of the Social Security Act 1998 , any other issues that merit consideration.

2. The First-tier Tribunal hearing the remitted appeal shall not involve the members of the panel who heard the appeal on 2 April 2024.

3. In reconsidering the issues raised by the appeal the First-tier Tribunal must not take account of circumstances which were not obtaining at the date of the original decision of the Secretary of State under appeal. Later evidence is admissible provided it relates to the time of the decision: R(DLA) 2 & 3/01 .

4. If the claimant has any further evidence to put before the First-tier Tribunal this should be sent to the regional office of Her Majesty’s Courts and Tribunals Service within one month of the date on which this decision is issued. Any such further evidence must relate to the circumstances as they were at the date of the decision of the Secretary of State under appeal (see Direction 3 above).

5. The First-tier Tribunal hearing the remitted appeal is not bound in any way by the decision of the previous First-tier Tribunal. Depending on the findings of fact it makes the new panel may reach the same or a different outcome from the previous panel. REASONS FOR DECISION What this appeal is about

1. This appeal is about the requirements of procedural fairness. It is about the requirement that a judge makes a record of proceedings and about what that record of proceedings must show. It contemplates that a record of proceedings may, in certain circumstances, be comprised of multiple documents. Background

2. The Appellant (to whom I shall refer as the “claimant” ) claimed a Personal Independence Payment ( “PIP” ) on 2 January 2015. On 19 May 2015 she was awarded a PIP from 2 January 2015 until 10 March 2018 with the daily living component at the standard rate but without the mobility component at either rate. Following an award review, that award was superseded and replaced with an award of a PIP with both components each at the standard rate from 7 September 2017 until 6 August 2021, an award that was later extended to 6 May 2022 due to the Covid pandemic. On 8 June 2021 the claimant advised of a change of circumstances (a deterioration in her health condition) which led to an unplanned review of her award. The claimant completed an Award Review form and attended a face-to-face assessment with a healthcare professional, and upon review the claimant was awarded PIP with both components at the standard rate from 10 April 2023 to 20 February 2027 (the “SoS Decision” ). The claimant considered that that award was insufficient to reflect the difficulties she experienced and requested a mandatory consideration of the SoS Decision. However, the SoS Decision was confirmed on mandatory reconsideration. The claimant then appealed the SoS Decision to the First-tier Tribunal.

3. On 2 April 2024 a three-member panel of the First-tier Tribunal convened at Wakefield Civil Justice Centre to hear the claimant’s appeal (the “Tribunal” ). Having heard evidence and argument, the Tribunal dismissed the claimant’s appeal and confirmed the SoS Decision (the “FtT Decision” ). The claimant requested a statement of reasons for the FtT Decision and the record of proceedings for her hearing. A statement of reasons was provided on 13 May 2024. Unfortunately, the audio recording of the hearing that was provided was incomplete, covering only the first 45 minutes of the hearing.

4. On 26 June 2024 the claimant’s representative applied to the First-tier Tribunal for the setting aside of the FtT Decision on the grounds of a procedural error, namely the failure to provide a full record of proceedings. On 9 September 2024 a judge of the First-tier Tribunal dismissed the application for set aside. The judge expressed regret that the audio recording of the hearing was incomplete but noted that the tribunal judge who heard the appeal had prepared a detailed and full written note of the proceedings, and said that this had enabled him to produce a statement of reasons for the FtT Decision. The judge decided that it would not be proportionate to set aside the FtT Decision since a detailed statement of reasons had been prepared. The judge directed that the judge’s written reasons should stand as the record of proceedings. The permission stage

5. Dissatisfied with the refusal to set aside the FtT Decision, the claimant applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal. That application was dismissed by a salaried Tribunal Judge. The claimant then exercised her right to apply to the Upper Tribunal for permission to appeal and the matter came before me.

6. I granted permission to appeal. In my grant of permission (which was addressed to the claimant) I explained my reasons for granting permission as follows: “9. Your representative said that the judge at the hearing before the Tribunal was dismissive of the bulk of your reasons for appealing the SoS Decision and “dismissed out of hand” what you had said about your attempts to get a copy of the ESA85 report that had resulted in an award of ESA with the support component, and which you thought could be pivotal evidence in support of your PIP appeal. She argued that the judge’s “dismissive” attitude was evidenced in paragraphs [29] and [31] of the Tribunal’s statement of reasons, in which the Tribunal said that entitlement to ESA “doesn’t automatically bring an entitlement to PIP, which is assessed separately and under different criteria. ESA assesses fitness to work and that is not relevant to the qualifying criteria for PIP (paragraph [31] of the statement of reasons).

10. Your representative explained that she requested the audio recording of the hearing before the Tribunal because what was said in the statement of reasons didn’t reflect her recollection of the hearing, but the audio recording covered only part of the hearing before the Tribunal. She said that the judge eventually produced a written account of the hearing some 4 months after the statement of reasons had been issued, and you had been told that this written account would stand as the record of proceedings.

11. The Tribunal had a broad discretion as to how it assessed the evidence. While you felt that the judge was “dismissive” of your arguments and evidence, it had a broad discretion in how it assessed your evidence, what it accepted and what it didn’t. It was required to give reasons for its decision, but it didn’t have to refer to every argument put to it or every piece of evidence relied upon. The Tribunal was correct to say that an award of ESA doesn’t necessarily indicate that an award of PIP is indicated.

12. However, I am persuaded that it is arguable with a realistic prospect of success that: a. the failed recording of the hearing amounted to a material procedural irregularity because: i. it resulted in there being no complete record of proceedings; and ii. the lack of a complete record of proceedings prevented you from being able to demonstrate to me that the judge was “dismissive” of your arguments and evidence; b. the Tribunal failed to give proper consideration to adjourning the hearing to obtain a copy of the ESA 85 which you had been seeking, or it failed adequately to explain why it decided that it was not in the interests of justice to adjourn for that purpose.

13. The appeal raises the issue of potentially wide application of what amounts to a record of proceedings in the context of a hearing before the First-tier Tribunal (Social Entitlement Chamber), and in particular whether the written record produced by the judge from their notes of the hearing was indeed the record of proceedings, as you were told.

14. This warrants a grant of permission to appeal to the Upper Tribunal.”

7. I made Case Management Directions for the parties to make submissions on the substantive appeal and to indicate whether they requested an oral hearing. The positions of the parties

8. Mr Razzaq, on behalf of the Secretary of State, indicated support for the appeal on the basis that the Secretary of State considered that the Tribunal had erred in failing to keep a complete record of proceedings, the audio recording covering only the first 45 minutes of the hearing, and the written record made by the tribunal judge who presided over the hearing also being incomplete.

9. Mr Razzaq submitted further that the Tribunal erred in law by failing to consider whether to adjourn the hearing to obtain the ESA85 form relating to the claimant’s ESA award.

10. Mr Razzaq invited me to set the FtT Decision aside and remit the matter to be reheard by another tribunal.

11. The claimant’s representative had no further comment to make. Neither party requested an oral hearing.

12. Given the degree of agreement between the parties, I decided that the interests of justice did not require an oral hearing. Analysis

13. Proceedings before the First-tier Tribunal (Social Entitlement Chamber) are governed by the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the “FtT Rules” ). There is no express requirement in the FtT Rules for the First-tier Tribunal to make and keep a record of hearings before it.

14. On 1 April 2022 Lord Justice Lindblom (then Senior President of Tribunals) issued a practice statement titled ‘Record of Proceedings in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 31 March 2022’ . I shall refer to this as the “SPT’s Practice Statement” .

15. The SPT’s Practice Statement provides: “2. A record of the proceedings at a hearing in a social security and child support case must be made by the presiding member, or in the case of a Tribunal composed of only one member, by that member.

3. The record must be sufficient to indicate any evidence taken and submissions made and any procedural applications, and may be in such medium as the member may determine.

4. The Tribunal must preserve – a. the record of proceedings; b. the decision notice; and c. any written reasons for the Tribunal’s decision for the period specified in paragraph 5.

5. The specified period is 18 months from the date of – a. the decision made by the Tribunal; b. any written reasons for the Tribunal’s decision; c. any correction under rule 36; d. any refusal to set aside a decision under rule 37; or e. any determination of an application for permission to appeal against the decision, or until the date on which those documents are sent to the Upper Tribunal in connection with an appeal against the decision or an application for permission to appeal, if that occurs within 18 months.

6. Any party to the proceedings may within the time specified in paragraph 5 apply in writing for a copy of the record of proceedings and a copy must be supplied to him.”

16. The present tribunals system was established under the Tribunals, Courts and Enforcement Act 2007 (the “ TCEA 2007 ” ), which provided for the office of Senior President of Tribunals. Section 3(4) TCEA 2007 provides that the Senior President of Tribunals “is to preside over both of the First-tier Tribunal and the Upper Tribunal” and section 2(3) provides that the Senior President of Tribunals must, in carrying out the functions of that office, have regard to the need for proceedings before tribunals “to be fair”.

17. While Section 23(1) of the TCEA 2007 provides for the Senior President of Tribunals giving directions as to the practice and procedure of the First-tier Tribunal and the Upper Tribunal, it does not expressly reference the issuing of ‘practice statements’ (as opposed to practice directions). Neither party has taken issue with the authority of the Senior President of Tribunals to issue practice statements, and I have proceeded on the basis that it is within the Senior President of Tribunals’ competence to do so. In any event, the SPT’s Practice Statement clearly sets out the Senior President of Tribunals’ understanding of what is necessary to ensure that proceedings before tribunals to be “fair” , and it is to be expected that tribunals will conduct proceedings in accordance with that understanding.

18. The SPT’s Practice Statement places an obligation on the presiding member (which in this case was the judge) to “make” a record of the proceedings, and an obligation on the entire tribunal to “preserve” the record for the specified period. They expressly allow the record of the proceedings to be “in such medium as the member may determine” but they require that (whatever form the record takes) it must “be sufficient to indicate any evidence taken and submissions made and any procedural applications” .

19. In this case it appears that the judge arranged for the hearing to be recorded, with the presumed intention that the recording would be the record of proceedings, but the judge also made a note of the proceedings, presumably to assist with the task of producing written reasons for the tribunal’s decision should written reasons be requested, and then provided written reasons when in due course the claimant requested them.

20. When it transpired that the recording of the hearing was incomplete, a salaried judge directed that the judge’s written reasons “shall stand as the record of proceedings” .

21. Given the terms of the SPT’s Practice Statement, it is not entirely clear to me that it was for the salaried judge (as opposed to the judge who presided over the Tribunal) to determine the medium of the record of proceedings. However, that is probably not material in the circumstances of this case. What really matters is whether the judge made a record that satisfies the substantive requirement of paragraph 3 of the SPT’s Practice Statement, i.e. a record “sufficient to indicate any evidence taken and submissions made and any procedural applications” .

22. The non-prescriptive approach of the SPT’s Practice Statement as to the medium of a record of proceedings leaves open the possibility that a record of proceedings might be capable of comprising multiple documents, such as an audio recording of the hearing, the judge’s note and the judge’s written reasons.

23. It is not necessary for me to decide which of (or which combination of) the audio recording, the judge’s note and the judge’s written reasons, comprised the record of proceedings in this case because, for the reasons that follow, I find that even if all three documents together comprise the record of proceedings they do not record “any evidence taken and submissions made” .

24. In the application for permission to appeal the claimant’s representative argued that the judge had been “dismissive” of “ the bulk of [the claimant’s] reasons for appealing” and what the claimant had said about her attempts to get a copy of the ESA85 report that had resulted in an award of ESA with the support component.

25. I listened to the recording of the hearing, but I was not persuaded by what I heard that the judge or any other member of the Tribunal was “dismissive” of the claimant’s case. However, because the recording of the hearing covers only the first 45 minutes of the hearing, that does not provide a full answer to the claimant’s assertion of dismissiveness because there may have been dismissiveness in the part of the hearing after the recording failed.

26. The first page of the judge’s written note of the hearing records that the issue of a change in the claimant’s circumstances was raised: “A ≠ initiate change of circs but when completed AR Form, she advised it was change of circs. Discussn re effective date v change of circs is 18.6.21”

27. On the fifth page of the judge’s note there is another reference to the claimant’s health having deteriorated: “Worse since 2017 – change of circs” .

28. On the first page of the judge’s written note there is a reference to the claimant or her representative reporting that she has an award of Employment and Support Allowance: “ESA Sppt Gp - ≠ know what basis or when awarded.”

29. There is no note of the claimant or her representative making submissions about the implications of that award for her claim to have experienced a deterioration in her condition.

30. The written reasons provided by the judge record (at paragraph [29] under the heading ‘Findings of fact’ that the claimant “had been awarded the Support Group of Employment Support Allowance (ESA) but neither she nor her representative knew on what basis or when it had been awarded.”

31. Under the heading ‘Reasons for decision’ the judge said at [31]: “Although [the claimant] is entitled to ESA, this doesn’t automatically bring an entitlement to PIP, which is assessed separately and under different criteria. ESA assesses fitness to work and that is not relevant to the qualifying criteria for PIP.”

32. The claimant’s representative says that she argued before the Tribunal that the claimant had experienced a significant deterioration in her health condition between her initial award in 2015 and the SoS Decision, and had explained that the claimant considered that the ESA85 report made in the context of her Employment and Support Allowance claim should have been considered.

33. I take what Mrs Creighton’s report of what was said at the hearing at face value. Such submissions are recorded neither in the audio recording, the judge’s note nor the judge’s written reasons. As such, I consider that there has been a failure to make and retain a record of proceedings satisfying paragraph 3 of the SPT’s Practice Statement. This is important because the absence of any account of the submissions made and any response from members of the Tribunal panel makes it impossible for me to assess whether the Tribunal was impermissibly dismissive of Mrs Creighton’s submissions. That is a procedural irregularity amounting to an error of law.

34. Turning to the second ground of appeal for which I granted permission, the Tribunal was made aware that the claimant had been awarded Employment and Support Allowance with the Support Component and had been seeking to obtain the ESA85 report on the basis that she considered it relevant to her PIP appeal. The Tribunal was right to say that an award of Employment and Support Allowance does not automatically bring entitlement to PIP, and the Tribunal had a very broad discretion as to how it managed the proceedings including whether or not to adjourn for further evidence. However, there is nothing in the audio recording of the hearing, the judge’s notes of the hearing or the judge’s written reasons to indicate that the Tribunal had considered the issue of adjournment at all. In all the circumstances I am persuaded that the Tribunal’s failure to consider adjourning for the ESA85 evidence (or, if it did, failing to explain its decision making in that regard in its written reasons) also amounts to an error of law.

35. Given the nature of the errors of law that I have found, which obscure the way that the Tribunal went about its decision making, it may well be that the outcome of the appeal would have been different had the errors not been made and had the Tribunal’s decision making been more apparent. This renders the errors material.

36. Having found that the Tribunal erred in law in a way that was material, I consider that the interests of justice require me to exercise my discretion under section 12(2) (a) TCEA 2007 to set the FtT Decision aside. Disposal

37. Having decided to set aside the FtT Decision under section 12(2) (a) of TCEA 2007 I have a discretion whether to remit the matter to the First-tier Tribunal for redetermination, or to remake the decision for myself. Because further facts need to be found, and because the First-tier Tribunal with its expert members is the most appropriate forum for finding such facts, I exercise my discretion to remit the matter to the First-tier Tribunal to redetermine the appeal. Authorised for issue on: 13 October 2025 Thomas Church Judge of the Upper Tribunal