Is the Cart-threshold being set too high?

Desmond Rutledge and Zubier Yazdani consider the hurdles facing welfare benefit claimants seeking to use the Cart test.

Introduction

Speaking generally, a First-tier Tribunal (‘FtT’) has a wide discretion when making case management decisions, such as whether to adjourn, so long as it has regard to the overriding objective of dealing with cases fairly and justly (Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Regulations 2008, SI No 2685, rule 2(1)).  There is no specific definition in the Rules as to what ‘justly and fairly’ means.  However, rule 2(1) is informed by the common law rules on natural justice and the right to a fair hearing enshrined in article 6(1) of the ECHR. In  R (MM & DM) v Secretary of State for Work and Pensions [2013] EWCA Civ 1565, the Court of Appeal upheld a finding that claimants with mental health problems suffer a ‘substantial disadvantage’ within the meaning of the Equality Act 2010, s.20(3), compared to other claimants in the assessment of their eligibility to Employment and Support Allowance. The substantial disadvantage point and how it was taken in into account by the Rules was at the heart of the legal challenge described below.

The ESA appeal

The claimant, Mrs O, had been awarded Employment and Support Allowance (‘ESA’) on the basis that she was suffering from Anxiety, Diabetes and Musculoskeletal problems.  In 2011 she failed the ‘limited capability for work test’ but her appeal to a First-tier Tribunal (‘FtT’) was allowed after she provided a medical report from her GP.  In February 2013, Mrs O’s entitlement to ESA was again withdrawn when she failed a further capability for work assessment.  On this occasion, she was awarded six points under descriptor 15(c) on ‘Coping with getting about on your own’ but as this was less than the 15 points required to pass the test, her ESA claim was disallowed.  Mrs O appealed the decision which meant that ESA continued to be paid, albeit at the basic rate.  In her letter of appeal Mrs O maintained that:

“ … my circumstances have not changed since my last medical in September 2011 where the outcome was the same and I had to appeal, as you may know I lost that appeal but won the tribunal. … When this last happened I had to get an in depth medical note from my GP, specifying my condition which was sent to your Department.”

Mrs O informed HM Court and Tribunals Service that she could not attend the hearing of her appeal as she: “did not go out due to her depression, anxiety, panic attacks and phobias”.  However, she also said that she wanted the FtT to have regard to the medical evidence she had previously provided from her GP, but that she was not in a position to pay for a new report.  In her letter Mrs O wrote:

“I cannot send a medical letter to you as in 2011 I had to pay £35 and I’m only receiving basic money therefore I cannot afford to send another medical letter”.

An FtT sitting in July 2013 dismissed Mrs O’s appeal.  In its Statement of Reasons the Tribunal said that it had requested that the records be searched to see if the 2011 medical letter was available but were told that it was not.  The Tribunal decided that there was “sufficient evidence” before it in the form of the ESA50 questionnaire and the report from the medical examination (Form ESA85) for it to deal with the matter fairly.

The refusal of permission by the Upper Tribunal

With the assistance of Camden Welfare Rights Team, Ms O applied for permission to appeal to first the FtT and then the Upper Tribunal (‘UT’).  In the grounds it was argued that the FtT had failed in their inquisitorial function by not considering whether to adjourn to obtain the appellant’s medical records from her GP.  Permission to appeal was refused by both the FtT and the UT.  In the UT’s reasons for refusing permission Judge Gray said that the FtT had dealt with the absence of the GP’s letter from the previous appeal issue in its decision and held that:

“The issue of the need to adjourn was one for the FTT, which comprised a judge and a medical member.  Using the expertise of the medical member the decision was taken that there was sufficient evidence, and, by implication, that it was unnecessary to decide the matter fairly and justly to adjourn for further evidence.  That was a decision which was within the ambit of what was reasonable, and with which I do not interfere.  I consider it to have been adequately explained.” [emphasis added]

The decision in MM & DM

In the linked decisions MM v Secretary of State for Work and Pensions [2013] UKUT 259 (AAC) and DM v Secretary of State for Work and Pensions [2013] UKUT 260 (AAC) , a panel of three judges considered whether the DWP was in breach of its duties under the Equality Act 2010 (‘the 2010 Act’) to make reasonable adjustments in respect of those with mental health problems when undertaking the preliminary stages of a work capability assessment due to the practice of not obtaining further medical evidence before a decision is reached.  Based on evidence provided by Mind, the National Autistic Society and Rethink Mental Illness, who acted as interveners in the case, the UT made the following findings on the kind of problems those with mental health problems (‘MHPs’) face when undergoing the ESA assessment:

  1. “in terms of filling out a form, seeking additional evidence and answering questions, claimants with MHPs as a class have the following problems and difficulties because of their MHPs, some of which overlap:
    1. insufficient appreciation of their condition to answer questions on the ESA50 correctly without help,
    2. failure to self-report because of lack of insight into their condition,
    3. inability to self-report because of difficulties with social interaction and expression,
    4. inability to self-report because they are confused by their symptoms,
    5. inability because of their condition to describe its effects properly,
    6. difficulty in concentrating and in understanding the questions asked,
    7. unwillingness to self-report because of shame or fear of discrimination,
    8. failure to understand the need for additional evidence because of cognitive difficulties,
    9. problems with self-motivation because of anxiety and depression which may prevent them approaching professionals for help and assistance,
    10. false expectation that conditions will be understood without them needing additional help, and
    11. lack of understanding that professionals named in the form will not automatically be contacted in the assessment process.
  1. in terms of further aspects of the process for the determination of their entitlement to ESA, claimants with MHPs as a class have or have to face the following problems and difficulties because of their MHPs:
    1. particular conditions (e.g. agoraphobia and panic attacks and autism spectrum disorder) make attending and/or travelling to a face-to-face assessment difficult,
    2. finding the process itself intimidating and stressful, and, in some cases, that having a long-lasting negative effect on their condition,
    3. a desire to understate conditions,
    4. the masking of health problems as physical problems,
    5. dealing with assessors who have little or no experience of mental health problems,
    6. the difficulties of identifying many symptoms of a condition and its impact on what a person needs without proper training and knowledge,
    7. the lack of time during a short assessment to identify a person’s needs,
    8. fluctuation in condition, and
    9. scepticism about the condition.”

The UT rejected the claimants’ primary argument that further medical evidence needed to be obtained in every case.  Nevertheless, the panel of judges concluded that in the light of the difficulties listed above, claimants with mental health problems as a group are put at a substantial disadvantage, and this is sufficient to establish a prima facie case of discrimination under section 136 of the 2010 Act.  The Secretary of State’s appeal against this finding was subsequently dismissed by the Court of Appeal (supra), para [66], though the question of what action the Secretary of State should take in the form of a reasonable adjustment remains outstanding.

The application for judicial review

Following the decision of the Supreme Court in R (Cart) v The Upper Tribunal and ors [2011] UKSC 28, the threshold that needs to be met in order to bring a successful application for judicial review of a refusal of permission by an Upper Tribunal is a high one.  The court will only grant permission for the application to proceed if there is an arguable case that both the decision of the UT refusing permission to appeal and the decision of the FtT against which permission to appeal was sought are wrong in law; and that either – (i) the claim raises an important point of principle or practice; or (ii) there is some other compelling reason to hear it (CPR rule 54.7A(7)).

According to judicial guidance, a case will only raise an important point of principle if there is no decided authority on the point or the authorities disagree (Secretary of State for Work and Pensions v Cattrell [2011] EWCA Civ 572, para [22]).  A case will only meet the alternative “compelling reasons” test if it is one which “cries out” for consideration, e.g. where a procedural failure makes it “plainly unjust” to refuse a party a further appeal: PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988, para [35].

Mrs O’s application for judicial review was based on the following grounds:

  • the UT Judge had asked herself the wrong question – namely, whether the decision to proceed was “within the ambit of what is reasonable” when the sole test in relation to procedural propriety is whether the decision is unfair (SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284, paras [13]-[14]);
  • the FtT’s decision was unfair, and therefore unlawful, as the tribunal did not take into account the guidance in MM & DM; on the substantial disadvantages faced by ESA claimants who have mental health problems;
  • as a result, the FtT had been wrong to conclude that it had ‘sufficient evidence’ before it to reach a fair decision on the papers in the absence of further medical evidence given the facts in this case, and this error was repeated by the UT when it refused permission to appeal;
  • for whilst the FtT is a specialist tribunal and has the benefit of a medical member on the panel in ESA appeals, there is very little scope for a medical member to elicit further evidence regarding a claimant’s mental health problems in a paper hearing of an appeal where the only medical evidence is the ESA50 report from Atos.

It was also submitted that although the grounds based on MM & DM did not appear in the application for permission to appeal before the UT,  they raised a point of social security law that is sufficiently obvious to meet the test in R v. Secretary of State for the Home Department ex parte Robinson [1997] EWCA Civ 3090, on when it would be appropriate to grant permission in respect of a point not raised in the grounds of appeal.

Proceedings in the High Court

When the claimant’s application for permission to apply for judicial review was lodged at court, the defendant – the UT – indicated that it would take no part in the proceedings.  The Secretary of State for Work and Pensions, the interested party, filed an Acknowledgement of Service in which it sought to resist the application for judicial review. In a Summary Defence the Secretary of State argued that as the claimants’ argument in MM & DM that it was necessary to obtain further medical evidence in every case where the claimant suffered from mental health problems had been rejected, it followed that the claimant could not argue that the FtT’s failure to proceed without further medical evidence rendered the appeal hearing unfair or in breach of article 6.

In an Order dated 9 May 2014 Mr Justice Holman refused permission for the judicial review to proceed.  In the reasons for the refusal the Judge said that he could not accept that it was even arguable that the FtT was “obliged” to obtain a copy of the GP’s medical letter from 2011.  This was a matter for the FtT’s discretion and that it was “open to them (being a specialist tribunal) to conclude that they had sufficient evidence as to the position as at February 2013.”

Appeal to the Court of Appeal

Mrs O appealed against the refusal of permission on the grounds that Holman J had failed to grapple with the principle argument advanced in the grounds for judicial review – namely, that the FtT and the UT had failed to take into account the guidance in MM & DM on the substantial disadvantage that ESA claimants such as Mrs O face and that:

  • by parity of reasoning, the guidance in MM & DM applied to ESA claimants appealing to a FtT where no further medical evidence had been obtained by the time the case reached a hearing;
  • that the FtT’s failure to have any or sufficient regard to the disadvantages identified by MM & DM amounted to a breach of article 6 combined with article 14 of the ECHR as the resulting differential treatment of claimants with mental health problems in this context had the effect of perpetuating the discriminatory practice adopted by the Secretary of State at the earlier stages of the ESA process and thus infecting the fairness of the FtT’s decision.

It was also submitted that these grounds satisfy the Cart requirement because they raise a novel point – namely, whether the guidance in MM & DM extends to how the FtT deals with adjournments for further evidence with ESA appeals where no further medical evidence describing the claimant’s mental health problems has been supplied by the time of the hearing.

DC v SSWP

Around this time the UT handed down a decision which appeared to provide support for Mrs O’s appeal.  In DC v Secretary of State (Tribunal procedure and practice (including UT) : tribunal practice) [2014] UKUT 218 (AAC), the UT Judge (Sir Crispin Agnew of Lochnaw Bt QC) considered  the correct approach to the question of whether a FtT should  adjourn to allow a claimant to obtain representation.  The UT Judge noted that under established case law there is no obligation on a tribunal to offer unrepresented claimants the opportunity of an adjournment to obtain representation (CSIB/848/97, para [9]).  While accepting that this had been correct at the time, the UT Judge held that in light of the decision in MM & DM the position needed to be reconsidered.  After citing the list of problems faced by ESA claimants with mental health problems (see above) the UT held:

“Thus it can be seen that in MM the court accepted that in the ESA process, including attending for the ESA assessment [the ESA85] and in the tribunal hearing that claimants with mental health problems suffered disadvantage. If there is a disadvantage to a person with a protected characteristic under the Equalities Act 2010, then a public authority, which includes a tribunal, has to consider whether or not a reasonable adjustment is required.  Against that background, I am of the opinion that the law as expressed in CSIB/848/97, and the general discretion of a tribunal as to whether or not to allow an adjournment requires to be considered.

I consider that where a claimant with mental health problems asked for an adjournment in order to instruct a representative or for some other reason, that the tribunal in considering that request is required to have regard to the fact that such a claimant is at a disadvantage for one or more of the reasons found in MM and to assess the scope of that disadvantage for the particular claimant before making a decision on whether or not to grant the adjournment.

In the present case the tribunal did not recognise that the claimant was at a disadvantage and then make such an assessment. Of course they did not have the benefit of MM, but I do and on that basis I can re-assess the situation and that is why I hold the tribunal erred.”  (At paras [5] to [7])

The outcome

In an Order dated 12 August 2014, Lord Justice Tomlinson granted permission for Mrs O’s application for judicial review to proceed.  In the reasons, the Order said: “The requirements of CPR54(7A)(7) are amply satisfied for the reasons set out in the skeleton argument of 21 May 2014 in support of the application.” 

“ Notwithstanding the successful outcome of the application for judicial review, the Secretary of State argued that he should not be required to pay the claimant’s costs of the application as: (i) he had played no part in the FtT’s decision; (ii) the grounds based on MM & DM had not been raised before the UT; and (iii) the claimant’s application before the Court of Appeal had only succeeded due to the UT decision in DC, which had not been available to the Secretary of State when he submitted his Acknowledgment of Service.  These arguments were rejected by the Court which confirmed the terms of the Order made in August – which had held that the costs were “in the application for judicial review”.

Commentary

In Cart, the Supreme Court  made it clear that the legal test they had chosen  represented a ‘restrained approach to judicial review’ in relation to the UT but it was one that was designed to ensure that “important errors can still be corrected” (per Lady Hale’s judgment in Cart at para [57].  Upper Tribunal (Administrative Appeals Chamber) in 2012/13 received a total of 6741 applications (Source: Tribunal Statistics quarter 4 – Jan-Mar 2013 tables – Table 1.1.).  It is reasonable to assume that out of those applications where permission was refused by the UT, that a small portion would be capable of meeting the Cart criteria.  The High Court’s treatment of the Cart challenge in the case study above may have been influenced by the well known observation of Lady Justice Hale (as she then was) that in a highly specialised area of the law like social security, it is “quite probable that … the Social Security Commissioner (the predecessors of the UT Judges) will have got it right” (Cooke v Secretary of State for Social Security [2001] EWCA Civ 734).  However, such an approach cannot be right or appropriate where the challenge is based on fairness grounds. For as Mr Justice McCloskey (President of the Upper Tribunal (Immigration and Asylum Chamber) explained in Nwaigwe (adjournment: fairness) v Secretary of State for the Home Department [2014] UKUT 418 (IAC):

“Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably.  Rather, the test to be applied is that of fairness:  was there any deprivation of the affected party’s right to a fair hearing? Any temptation to review the conduct and decision of the FtT through the lens of reasonableness must be firmly resisted, in order to avoid a misdirection in law.  In a nutshell, fairness is the supreme criterion.” (At para [17]) [emphasis in original]

There is a danger that deference by the High Court to the decision making of the Upper Tribunal will have the effect that the Cart test will become an insurmountable hurdle based on “the ‘exceptional circumstances approach”, which the Supreme Court rejected; instead of the “second-tier appeals criteria” which allows the court to deal with those cases “where something has gone seriously wrong” (para [104]).

See also:Challenging a Refusal of Permission to Appeal by the Upper Tribunal (Administrative Appeals Chamber) in a Welfare Benefits Case – A Practice Note.’

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