“Oh dear. Oh dear. Oh dear.”

This was the introductory paragraph of Upper Tribunal Judge Wikeley in AF v SSWP (DLA) (No.2) [2017] UKUT 366 (AAC). When a judge expresses himself in this manner – and when the Secretary of State for Work and Pensions supports all three grounds of appeal against a decision that went his way – you know something has gone badly wrong.

The conduct of the case by the First-tier Tribunal left a lot to be desired, putting it mildly. The case was a complex, hotly contested social security case worth £50,000, with 90 minutes of video evidence and over 1,000 pages in the bundle. The First-tier Tribunal had already been overturned by the Upper Tribunal in the same matter: this was a ‘second time around’ case.

A fresh decision was made by the First-tier Tribunal. This decision was under scrutiny in the present case, for three main reasons:

• the case was not adjourned even though the appellant’s representative was unable to make it, nor did the Tribunal consider doing so;
• the findings of fact and reasons of the First-tier Tribunal were inadequate;
• the tribunal’s treatment of the video evidence was inadequate.

An absolute right to be dealt with fairly

Despite the case being instructed to be listed for a full day, it was listed only for an afternoon session with the possibility of a second day. As a result, the appellant sent an email, with this as the first paragraph:

This is the fourth panel to hear this appeal and experience tells me it will not be possible for it to be heard in half a day. The panel struggled to hear it in a full day last time and we were last to leave the building. Watching the surveillance alone takes around 90 minutes and there are then over 1000 pages in the bundle.

Furthermore, she argued that the prospect of a two-day hearing in Liverpool would make it extremely difficult for her representative to attend. Upper Tribunal Judge Wikeley describes the dog’s dinner that follows:

The Appellant received no reply to her e-mail of 7 November 2016. She accordingly sent it again on 30 November 2016, pointing out “I am growing concerned as there is only one week to the hearing”. On 6 December 2016 – 48 hours before the hearing – the Tribunal office replied with details of the listing arrangements and noting that the Appellant’s representative would not be attending. On 7 December 2016 the Appellant sent the Tribunal office a long e-mail stating she was “absolutely horrified to learn that I am expected to attend my hearing on 8/12/16 without representation…I do not want the tribunal to continue whilst I have no representative present.”

The request was refused by the Tribunal Judge. That in itself was not condemned by the Upper Tribunal, as a judge may decide to sort matters out on the day. But Judge Wikeley, quoting Collins J, pointed out that

I appreciate that there is no absolute right to representation, but there is an absolute right to be dealt with fairly.

The lack of consideration at the hearing of whether to adjourn led the Upper Tribunal to decide that the appellant had been dealt with unfairly by the First-tier Tribunal, and so an error of law had occurred.

Apparently incorrect findings of fact

The Upper Tribunal considered it “arguable” that the findings of fact and reasons of the First-tier Tribunal were inadequate. For example, the finding of fact that the Appellant was granted the highest rate of the care component of Disability Living Allowance between 2001 and 2003. This was corrected by the Department for Work and Pensions itself, because the appellant was granted the middle rate, not the highest rate.

Speechless

The First-tier Tribunal was found to have watched the video evidence and formed a view, but did not put any questions to the appellant about the video. Judge Wikeley reacted as follows to the submission of the Secretary of State that this was a breach of natural justice:

I agree. I am speechless.

If that were not enough, the Upper Tribunal agreed that the Tribunal had made an error of law in not requiring the Secretary of State to disclose why the appellant’s criminal case had been discontinued. Relatedly, the fraud investigation officer in the criminal case was dismissed, and replaced as a witness, with the agreement of the First-tier Tribunal. Yet neither the letter of the DWP notifying the First-tier Tribunal nor the Tribunal’s letter accepting the change were sent or notified to the appellant. The Upper Tribunal judged it to be a “matter of elementary fairness” that the appellant or her representative should have received a copy of the correspondence.

The Upper Tribunal concluded as follows:

All three grounds of appeal are made out. The Tribunal’s decision involves multiple errors of law and must be set aside. I direct (another) re-hearing. There are a number of other matters I should touch on.

Judge Wikeley continued, concerning next steps:

Given the unfortunate history of this case, I consider that such further directions should be reserved to the Regional Tribunal Judge. It is not for me to micro-manage that process. However, given the complexity of this case and the size of the bundle, I would suggest that in fairness to all concerned, and especially with a view to ensuring the appeal is dealt with fairly and justly, the new tribunal panel should be allocated one day’s preparation (i.e. reading) time and at least one day (i.e. two sessions) for the hearing itself.

…

I hope I do not see this case again.

All in all, it has not been a good week for First-tier Tribunal judges.