MS v The Secretary of State for Work and Pensions

Appeal No. UA-2024-001706-ESA

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER Between: MS - v - The Secretary of State for Work and Pensions Before: Deputy Upper Tribunal Judge Hocking Decided on consideration of the papers Representation: Appellant: Respondent: Laura bookkeeping and administration limited Mr Razzaq Appellant Respondent On appeal from Tribunal: Tribunal Case No: SC946/23/01801 Tribunal Venue: Decision Date: Preston 1 November 2023 Social entitlement chamber

DECISION The decision of the Upper Tribunal is to allow the appeal

DIRECTIONS 1. This case is remitted to the First-tier Tribunal (“FtT”) for reconsideration at an oral hearing.

2. It must be heard by an entirely fresh panel.

3. The FtT must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the FtT’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit MS v SSWP (ESA) Appeal no. UA-2024-001706-ESA consideration. While the FtT will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.

4. The new FtT is not bound by the decision of the previous FtT. Depending on the findings of fact it makes, the new FtT may reach the same or a different conclusion to the previous FtT. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the FtT to which this case is remitted.

5. These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the FtT.

REASONS FOR DECISION Decision on the papers 1. Neither party requests an oral hearing. The parties’ positions are clear and nothing raised by the appeal calls for an oral hearing, which would cause delay. I am satisfied that I can deal with the case fairly on the papers, and that it is in the interests of justice that I do so. Factual background 2. On 14/9/22 the appellant made a claim for ESA as from 20/5/22. Her claim was awarded as credits only, as she was said not to meet the contribution conditions. That decision was upheld on mandatory reconsideration on 11/4/23.

3. On 12/5/23 the appellant appealed to the FtT. On 1 November 2023 the FtT dismissed that appeal. The issue was with the first contribution condition, relating to payment of National Insurance Contributions. After some confusion as to how to lodge an appeal Grounds of appeal 4. Granting permission to appeal UTJ Butler said this: The Upper Tribunal confirmed in DT v SSWP (UC) [2019] UKUT 268 (AAC) and in MM v SSWP (ESA) [2011] UKUT 334 (AAC) that the tribunal must acknowledge explicitly that it has considered both whether the parties have consented to a decision being made without a hearing and that it can fairly and justly decide the appeal without holding one, and to explain why (rules 2 and 27 of the Tribunal Procedure (FTT) (SEC) Rules 2008). MS v SSWP (ESA) Appeal no. UA-2024-001706-ESA The Tribunal did not record in its Statement of Reasons that you had requested a decision without a hearing or how it had evaluated the requirements of rules 2 and 27. The Decision Notice includes a statement that refers to rules 2 and 27 but does not explain why the Tribunal considered it could fairly and justly determine your appeal on the basis of the papers. This was arguably an error of law. Further or alternatively, the Tribunal’s Statement of Reasons criticises the evidential weight of the tax returns you provided, and the evidence of payment to HMRC as not providing sufficient

detail of payments. The Tribunal has not explained what consideration it gave to adjourning the determination of your appeal to invite you to provide better quality evidence and / or to give evidence in an oral hearing. It is therefore unclear on this additional basis whether the Tribunal assessed if it could fairly and justly determine your appeal on the papers (and if so, why). In these circumstances, the Tribunal might reasonably have considered whether to adjourn 5. She added that the grounds of appeal listed in form UT1 would only fall to be considered if the grounds above were not determinative in their own right. The respondent’s reply 6.

7. So far as the first ground is concerned the respondent essentially agrees with UTJ Butler. As to the second ground the respondent refers to MH v Pembrokeshire CC [2010] UKUT 28 (AAC), and these passages: ‘Exercising that power [i.e. the power under rule 27] involves three stages.

11. The first stage occurs when a case is put before a tribunal for consideration on the papers and without the parties. That is done on the basis that none of the parties has asked for an oral hearing. It is probably done by a clerk and without any individual judicial consideration of the case.

12. The second stage occurs at the start of the tribunal’s consideration. It must be satisfied that no one has asked for an oral hearing. That is a condition of its power to consider the case on the papers. It that condition has not been satisfied, it has no power to proceed and must adjourn and direct an oral hearing. This is a judicial decision under rule 27(1)(a). There is no scope for the overriding objective to apply. Either there has been a request for an oral hearing or there has not. The condition is either satisfied or it is not.

13. The third stage occurs when the tribunal has considered the case. It must then decide whether to give a decision or to adjourn. The adjournment may be to allow an oral hearing to take place or to give directions to a party on evidence that is required. If an oral hearing is directed, this is a judicial decision under rule 27(1)(b). If the case is adjourned with directions, this is a judicial decision’ MS v SSWP (ESA) Appeal no. UA-2024-001706-ESA 8. They say there is insufficient evidence that the FtT considered stage 3 of this process of reasoning. Decision 9. I have nothing to add to what UTJ Butler said on the first ground of appeal. Compliance with DT does not need to be dealt with at great length, (I am conscious that in this decision I dealt with the same issue in one sentence) but some indication of the reasons is needed.

10. I will elaborate a little on the second ground of appeal. The ground that is before me is a reasons ground, and that must succeed: it is not clear if the FtT considered adjourning and why it did not adjourn.

11. The additional point I wish to make is that the requirement of fairness applies equally whether a matter is decided at an oral hearing or on the papers. The specific steps needed to ensure a fair hearing will depend on the format of the hearing but the underlying obligation is the same. In some cases the requirements of fairness and the inquisitorial nature of the FtT jurisdiction may be such that where it identifies a problem with the evidence when considering a matter on the papers only an adjournment or an oral hearing will be a reasonable exercise of the FtT’s case management powers.

12. Whether that would be so would depend on all the circumstances of the case including how clear it will have been to the party that evidence on a point or of a particular nature was needed, whether any perceived weaknesses or gaps in the evidence were likely to have been apparent to the party in advance, if potentially new or unexpected points have been taken, how likely it is that an adjournment would produce material new evidence, the materiality of the issue and evidence, and of course the delay and possible waste of tribunal time that an adjournment would cause.

13. So in this case the FtT placed little weight on copies of tax returns as it said they were of poor quality and did not present as official documents. A bank statement was also said to have been a poor quality copy. In so far as the concern was legibility of copies there must be a strong case for adjournment. The FtT knew that the appellant wanted it to consider those documents and it was not able to. Perhaps the appellant could have provided better quality copies if asked. Even if she could not she would then have realised that what she had thought was going to be considered by the FtT was in fact not going to be considered, and she might have been able to offer some other relevant document. The situation is analogous to an appellant in an oral hearing who mumbles when answering a question. I am sure that any FtT would instinctively ask them to repeat the answer more clearly. Just as an FtT would help a party engage with an oral hearing so it must help a party engage with a hearing on the papers.

14. As to the concern that the documents were not official documents a similar point applies. Again if these documents were produced in an oral hearing I feel confident an FtT would tell the appellant that they were not official documents, and ask if she had copies of her actual tax returns available. The same step is MS v SSWP (ESA) Appeal no. UA-2024-001706-ESA needed if the matter is decided on the papers. I have seen the documents in question and I can understand the FtT’s concern: the provenance of the documents is not entirely clear and they may or may not have been part of an actual return submitted to HMRC. But there is no need to take a decision in a state of uncertainty: the enquiry could be made.

15. It may be more onerous to carry out these additional investigations when deciding a case on the papers than at an oral hearing. That could be a reason to be more cautious about dispensing with oral hearings but it is not a reason to compromise the fairness of FtT proceedings. Conclusion 16. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I therefore set the FtT decision aside and remit the case to be reconsidered by a freshly constituted panel. I stress that this appeal having succeeded carries no implication for whether the FtT will or will not reach a decision that is more favourable to the appellant. That is a matter for it. Stephen Hocking Deputy Judge of the Upper Tribunal Authorised by the Judge for issue on 15 December 2025 5