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Neutral Citation Number:	2013 UKUT 111 AAC
Reported Number:
File Number:	CDLA 333 2011
Appellant:	MB
Respondent:	The Secretary of State
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	11/03/2013
Date Added:	03/04/2013
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	tribunal membership and procedure
Secondary Category:	Tribunal procedure and practice (including UT)
Secondary Subcategory:	fair hearing
Notes:	Reported as [2014] AACR 1 Practice – fair hearing – tribunal membership and procedure – whether permissible for appeals for ESA and DLA to be heard together or consecutively or whether a differently constituted tribunal required In each instance the three appellants appealed against decisions by three First-tier Tribunals (F-tTs) regarding their entitlement to employment and support allowance (ESA) and disability living allowance (DLA). A three-judge panel was convened to consider the appeals and the issue before it was whether it was permissible for a F-tT to hear appeals relating to claims by the same claimant for ESA and DLA concurrently (having regard to provisions governing the constitution of the F-tT) or consecutively or whether entirely separate hearings were necessary. Held, allowing the appeal, that: 1. (per Judge Mesher and Judge Ward) the provisions of the Tribunals, Courts and Enforcement Act 2007, the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 and the Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber Practice Statement envisaged that “deciding” an appeal involved a seamless web, starting with the pre-reading of the documents by panel members and ending with the formulation of the decision on the appeal and the reasons for it (paragraphs 27 to 28); 2. (per Judge Mesher and Judge Ward) the questions of user-friendliness, even if they could be taken into account, were at best equivocal and of limited weight in the face of an express regime established under statutory authority (paragraphs 31 to 32); 3. (per Judge Mesher and Judge Ward) it was impossible to see how the disability qualification member’s (DQM’s) involvement in concurrent hearings could not involve an error in law, either by participating without authority in the ESA appeal or by not playing a properly full part in the DLA appeal. The tribunals’ ESA decisions were, therefore, necessarily flawed. Whether there could be circumstances where the DLA decisions in concurrent hearings could be upheld was not considered as all three DLA decisions had to be set aside on other grounds. In remitting the present cases, the need to preserve the integrity of the ESA appeal process dictated that the ESA appeals and DLA appeals should be heard separately, by differently constituted tribunals (paragraphs 34 to 47); 4. (per Mr Justice Charles) both as a matter of language and purpose the reading, hearing and testing of written and oral evidence and argument was not a matter “that falls to be decided by a F-tT”. In the context of a tribunal meant to be user-friendly, flexible and proportionate, dealing with the evidence was severable from the actual making of decisions. It would therefore be possible for the ESA and DLA appeals to be heard together or consecutively at the same session. However, sufficiently clear directions, explanations and reasoning would be required in order to demonstrate that the F-tTs recognise their differing constitutions and functions and this recognition was reflected in the conduct of the hearing. Guidance was given suggesting how this could be done in practice (paragraphs 58 to 76); The three-judge panel set aside the decisions of the First-tier Tribunals and remitted each ESA and DLA appeal to be heard in separate sessions by differently constituted tribunals in accordance with its directions.
Decision(s) to Download:	[2014] AACR 1bv.doc