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Neutral Citation Number:	2013 UKUT 100 AAC
Reported Number:
File Number:	CDLA 635 2012
Appellant:	JS
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	06/03/2013
Date Added:	15/03/2013
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	statements of reasons
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2013] AACR 30. Power to amend reasons following review – interpretation and application of section 9(4)(b) of the Tribunals, Courts and Enforcement Act 2007 The claimant appealed unsuccessfully to a First-tier Tribunal (F-tT) against a decision to supersede her award of disability living allowance so that she was no longer entitled. Her representative requested a statement of reasons for the F tT’s decision and was provided with written reasons from the presiding, fee-paid, judge. The representative submitted that the statement did not give adequate reasons for the tribunal’s decision and, in response, the presiding judge issued additional reasons for the decision. These were passed for further consideration to a district tribunal judge, along with the representative’s letter. The district tribunal judge decided to review the tribunal’s decision because there had been an error of law, in that insufficient reasons were given to explain the decision, and issued an amended statement of reasons. The representative applied for and received permission to appeal to the Upper Tribunal (UT) against the original decision of the tribunal on the ground that the amended reasons were not validly made because there had been no review. The issue before the UT was the interpretation and application of section 9(4)(b) of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act). Held, allowing the appeal, that: 1. a salaried judge who has decided to review a decision should identify precisely the error of law that justifies the review (paragraphs 33 to 35 and 53); 2. a salaried judge who considers it might be appropriate to amend the reasons of a decision should invite the parties by notice to make suitable representations. The notice should identify any error of law and indicate the course of action proposed so allowing the parties an opportunity to consider whether either an amendment, or an agreed set aside, was appropriate or permissible and whether an amendment might avoid the danger that the reasons would be rewritten (paragraphs 26 to 27 and 54); 3. a salaried judge who invites the presiding judge to provide additional reasons should notify the judge of the error of law that led to the review; only exceptionally should they be sent the application for permission to appeal in order to assist in complying with section 9 (paragraphs 34 to 35 and 55); 4. only the presiding judge is able to draft the additional reasons and only a salaried judge could decide whether the reasons should be amended in the light of that draft. If a salaried judge was also the presiding judge the same discipline should be exercised at each stage as if these roles had been split (paragraphs 25 to 26 and 55); 5. it was not appropriate to define “amend” and instead a spectrum was identified where the amendment of reasons for a decision would be permissible at one extreme and impermissible at the other. It was permissible to amend the reasons in those cases where something had clearly gone wrong in their composition. But it was not permissible where it was unclear, as otherwise there was an unavoidable risk that the salaried judge would either supplement the tribunal’s reasons or justify its decision (paragraphs 37 to 51); 6. if reasons are amended, an appeal lies against the tribunal’s decision, including the reasons as amended (paragraph 59); 7. the UT had the power to decide whether the additional reasons had been properly added under section 9. In this case the additional reasons were impermissible as nothing was added to the original reasons and there was a danger of a drift into justification (paragraphs 60 and 61); 8. the common law or inherent power to amend reasons did not apply under the 2007 Act. The F-tT could not use that power to bypass the restrictions on section 9. The UT had power to call for reasons under rule 5(3)(n) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the 2008 Rules) (paragraphs 32 to 36); 9. the district tribunal judge acted in a manner that was procedurally unfair in reaching his decision and in making his order; he failed to give both parties notice before he made it and to give them the notice required under rule 40(4) of the 2008 Rules thereafter. His notice of the time limit for appealing did not cure the latter defect but merely drew the parties’ attention to the provision of rule 38(3) (paragraph 62); 10. the original reasons of the F-tT were too general in the analysis of the key factual issues; for instance the tribunal had accepted that the appellant experienced pain and fatigue but failed to investigate her individual experience so as to make specific findings of fact and to provide reasons applying the statutory criteria to those findings. The approach adopted by the UT in AS v Secretary of State for Work and Pensions (ESA) [2011] UKUT 159 (AAC) could not be followed, as the additional reasons were flawed in the same way as the original reasons (paragraphs 63 to 64). The UT set aside the F-tT’s decision and remitted it for rehearing by a differently constituted panel in accordance with the UT’s directions.
Decision(s) to Download:	[2013] AACR 30ws.doc