In the bag? Tribunals and less favourable decisions

 

Simon Osborne reviews some recent guidance offered in the caselaw about the ability of tribunals to make decisions more adverse to the appellant than the one under appeal.

It is well established that tribunals have the power to make a decision less favourable to the appellant than the one under appeal. This is because the appeal is a complete rehearing of the decision, with the tribunal able to make any decision that the decision maker could have; inevitably, that includes the power to make a less favourable decision. This is so even though the tribunal ‘need not’ consider an issue not raised in the appeal.1 s12(8)(a) Social Security Act 1998 says a tribunal ‘need not’ consider an issue not raised by the appeal – but not ‘must not’.

However, older caselaw has also emphasised the importance of tribunals exercising this power with discretion, as they are not obliged to consider issues not raised by the appeal, with claimants being put on notice that a less favourable decision was under consideration, and possibly offered an adjournment.2 The key piece of older caselaw is R(IB) 2/04. For more on this background, see ‘Tribunals and less favourable decisions’, Bulletin 213 (December 2009), p5.

It is generally uncommon for tribunals to make a less favourable decision than the one under appeal. However, the chances may be higher where the decision covers a number of distinct issues and the claimant is satisfied with part of the decision.

The prime examples are disability living allowance (DLA), where the decision under appeal may include a component or rate of a component with which the claimant is happy, and (probably less commonly) employment and support allowance (ESA), where decisions involve both points and components.

To this list must now be added personal independence payment (PIP). PIP is like DLA in that it includes different components, but it is also like ESA in that it involves the application of points. Indeed, some of the recent guidance in the caselaw has concerned PIP in this context.

A couple of ESA decisions have illustrated that an appellant has no inviolable right to retain points already awarded by the decision maker. A tribunal does have the power to remove such points.

In AS v SSWP [2012] UKUT 334 (AAC), the claimant had failed the work capability assessment, but the First-tier Tribunal removed even the six points that he had been awarded. From a ‘technical standpoint’, said Judge Lane, the outcome decision was simply that the claimant did not have limited capability for work and it ‘makes no difference’ whether the claimant misses the 15-point threshold narrowly or by a gulf: ‘he is not holding anything’. That points already awarded were ‘in the bag’ was a ‘common misperception’. Similarly, in TS v SSWP (ESA) [2012] UKUT 182 (AAC), Judge Wikeley rejected an argument that the tribunal had no power to remove points already awarded by the decision maker. With reference to the principles set out in the older caselaw, the judge said that the argument ‘…ignores the principle that the [tribunal] is not simply reviewing the decision maker’s decision – it is standing in her shoes and can make any decision she could have made. The appeal is by way of a rehearing (see R(F) 1/72 and R(IB) 2/04…’.

More recently, those decisions have been approved in the PIP context by Judge Wright, in EG v SSWP (PIP) [2015] UKUT 275 (AAC). In this case, the appellant had only been awarded two points by the decision maker but the tribunal decided to remove even that award. In itself, Judge Wright saw no unlawfulness there, and tended to agree with a Secretary of State argument that where no component was awarded, then all of the activities (and so all of the points) may (but, emphasised the judge, not must) be in issue for the tribunal.

Tribunals should act cautiously. All of the recent caselaw has reaffirmed that tribunals must exercise discretion when considering whether to make a less favourable decision. The recent JF v SSWP [2015] UKUT 267 case (concerning an overpayment of DLA) emphasises that, although tribunals can make less favourable decisions, they must explain why they exercised their discretion in this way. Also, the claimant must at least be put on appropriate notice about that so that s/he can make relevant arguments. This is the case even where the only adverse effect is merely a reduction in points.

In AS v SSWP, Judge Lane said that as appellants tended to assume that points already awarded were ‘in the bag’, tribunals should explain their powers to change the decision for the better or worse, in order to allow the appellant to address the tribunal’s concerns. In TS v SSWP (ESA), Judge Wikeley did not think that in such a case a formal warning at the start of the hearing was necessary. But, at the very least, the claimant had to be put on warning at some stage about the tribunal’s misgivings and given the chance to make arguments about that. In the PIP context, Judge Wright endorsed EG v SSWP (PIP), noting that he could see nothing in the tribunal’s record of proceedings showing that the tribunal ‘had advised the appellant that it had concerns about the descriptor 1b award and so put her on notice that she might need to address this issue specifically.’

Arguably, a warning applied only where a less favourable decision is realistically in prospect may help avoid the problem, stated in CDLA/884/2008, that if a tribunal gave ‘too robust a warning at the beginning of the hearing’ it ran the risk of appearing to have ‘prejudged’ the case; yet, if it did not give a robust warning, there was a risk of the claimant not being ‘fully informed’ about what might happen.

But a warning may not be enough. In CDLA/884/2008, the advocated solution was a general reluctance to make less favourable decisions: there was ‘powerful reason’ for tribunals not making such decisions ‘except in the most obvious cases…or after an appropriate adjournment.’ That approach has not been adopted in all the subsequent caselaw,3 See, for example, APH v SSWP (DLA) [2010] UKUT 183 (AAC), which considered such an approach a fettering of the tribunal’s discretion. but has been expressly followed in the recent BTC v SSWP [2015] 155 (AAC). The tribunal, having given the claimant a warning that her pre-existing award of the mobility component may be at risk and suggesting that she may wish to withdraw or obtain representation, went on to remove the mobility component completely. That was on the basis of the tribunal’s views about her ability to walk to her GP’s surgery, and when on holiday, although (crucially) this was not put to her at the hearing. Citing CDLA/884/2008, Judge Bano said that ‘a number of disability living allowance decisions have drawn attention to the pitfalls of tribunals making decisions which are less favourable to a claimant than the decision under appeal.’ The judge could see no reason for the tribunal wanting to consider the mobility component. Despite the warning, the tribunal had erred by not giving the claimant adequate chance to respond to its concerns before making its decision.

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