LO'L v Secretary of State for Work and Pensions (ESA) : [2016] UKUT 10 (AAC); [2016] AACR 31

Upper Tribunal Administrative Appeals Chamber decision by Judge Jacobs on 06 January 2016.

Read the full decision in CE/85/2014.

Judicial Summary

Tribunal procedure and practice – fair hearing – tribunal not subject to the duty to make reasonable adjustments under the Equality Act 2010

The claimant suffered from, amongst other things, depression, anxiety and panic attacks and was in receipt of employment and support allowance (ESA). Following her completion of a questionnaire and examination by an approved health care professional the Secretary of State decided, on supersession, that she no longer had limited capability for work and was therefore was not entitled to ESA. She appealed to the First-tier Tribunal (F-tT) on the basis that her circumstances were unchanged and stated that she was unable to attend a hearing because of her mental health problems or to afford medical evidence. The F-tT decided to proceed without a hearing and, after considering all the available documentary evidence, provided a detailed explanation for its decision to dismiss the appeal. The claimant appealed to the Upper Tribunal (UT) and among the issues before it was: what account should be taken by a tribunal of a claimant’s mental health problems when deciding whether to hold or to proceed with a hearing, and whether there had been a breach of the claimant’s rights under the Equality Act 2010, to natural justice or under the European Convention on Human Rights (ECHR).

Held, dismissing the appeal, that:

  1. a duty to make reasonable adjustments under section 29 of the Equality Act 2010 did not apply as the F-tT was exercising a judicial function: paragraph 3(1) (a) and (b) and (2) of Schedule 3 to the Act. The decision in DC v Secretary of State for Work and Pensions (ESA) [2014] UKUT 218 (AAC) was wrong in so far as it relied on the existence of such a duty and should not be followed. The decisions in R (MM and DM) v Secretary of State for Work and Pensions [2013] UKUT 259 (AAC); [2013] EWCA Civ 1565 and [2015] UKUT 107 (AAC); [2016] AACR 11 contained valuable evidence of the sort of problems that persons with mental health problems may encounter but each case must be decided on its own facts and circumstances (paragraphs 9 to 11);

  2. a claimant’s mental health problems must be taken into account when applying the overriding objective set out in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, which included dealing with a case fairly and justly, and ensuring, as far as practicable, that the parties were able to participate fully in the proceedings. Rules 27(1)(b) (the power to decide an appeal without an oral hearing) and 31(b) (the power to proceed with a hearing in the absence of a party if it is in the interests of justice) had to be applied in the light of the overriding objective in rule 2. The same approach applied where a tribunal was considering whether to proceed with a hearing in the claimant’s absence. It was impossible to apply the correct approach without first establishing the nature of the claimant’s mental health problems. The requirements of natural justice and the right to a fair hearing under Article 6 of the ECHR were additional to the tribunal procedure rules and, in contrast to the Rules, their application was not a matter of judgment, but a test of fairness: Terluk v Berezovsky [2010] EWCA Civ 1345 (paragraphs 15 to 18);

  3. there was no error of law by the F-tT; its reasons for not holding a hearing were soundly based in the evidence and circumstances of the case, it identified all the relevant considerations and devoted a proportionate amount of time to analysing whether to hold a hearing. The claimant was dealt with fairly and the proportionality of the tribunal’s time and analysis fed into that test: Terluk. A telephone hearing was one possibility that might have been considered, but given all the information before the tribunal it had not been necessary in order to deal with the issue fairly (paragraphs 22 to 36);

  4. there was no breach of the Secretary of State’s duty to disclose further relevant evidence because he did not have any such evidence (paragraph 38);

  5. the F-tT was not at fault for proceeding on the available evidence rather than using its power to obtain more (paragraphs 40 to 43).

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