AE v Secretary of State for Work and Pensions (UC)

This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on.

If the Appellant has any further written evidence to put before the tribunal and, in particular, further medical evidence, this should be sent to the relevant HMCTS regional tribunal office within one month of the issue of this decision.

The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal, which has been set aside in its entirety. The new tribunal may reach the same or a different outcome to the previous tribunal.

In this case, the First-tier Tribunal (“the FTT”) had to decide whether the Appellant had a good reason for failing to attend a work focussed interview, as a condition of his receipt of Universal Credit (“UC”). It decided that he did not, and refused his appeal. Judge Butler granted permission to appeal to the Upper Tribunal (“the UT”) on two grounds, that the FTT had failed to properly explain its decision to proceed to determine the appeal on the papers, and that it had failed to consider the use of its inquisitorial duty in the face of conflicts in the evidence.

In summary, I have concluded that both grounds (which are closely related) are made out. I have accordingly decided to allow the appeal and to remit the case for rehearing afresh before a different FTT.

The Appellant was in receipt of UC.

He had a face to face appointment with his work coach on 11 December 2024, at which he mentioned that he was feeling unwell. As a result, his next work search review was booked as a telephone appointment to take place on 24 December 2024. The Appellant did not attend or answer calls on that day, and did not make contact subsequently. He was asked (via his UC journal) to give reasons for this on 2 January 2025.

On 10 January 2025, he posted a message in his UC journal stating that:

On 14 January 2025, the DWP imposed a sanction on the Appellant’s UC entitlement.

On 15 January 2025, the Appellant was admitted to hospital on an emergency basis, and he remained there until 10 March 2025. There is a detailed letter from the hospital dated 10 March 2025 which states that he was unresponsive on admission with internal bleeding, certain other emergency health problems, and “delirium” that was “secondary to ICU stay”.

On the day of his admission to hospital, 15 January, the Appellant also contacted the DWP explaining that he was very unwell and was at hospital. I note that, although he said that he was “really not well and can barely walk”, he went on to offer that he “can cokme [sic] tomorrow”? That might be thought to suggest that he had limited insight as to how bad his situation was on that day.

The Appellant subsequently appealed the 14 January 2025 decision to impose a sanction. In his appeal he says that he was admitted to hospital on 15 January 2025, and that:

The FTT considered and decided the appeal on the papers on 29 July 2025. It issued a decision notice refusing the appeal and giving brief reasons. It later provided a statement of reasons (“SOR”).

In the SOR, it said as follows in relation to the question of whether to proceed on the papers:

It also said as follows:

On the substance of the appeal, the FTT’s key reasoning was as follows:

The Appellant appealed to the Upper Tribunal (“the UT”). Permission to appeal was granted by Judge Butler on 2 April 2026. Judge Butler gave permission generally, on the points advanced by the Appellant, but also identified two specific points that she considered to be arguable. These are the two points which I identified in the Introduction, namely the failure to properly consider the appropriateness of deciding the case without a hearing, and the failure to consider the exercise of the FTT's inquisitorial function.

Egle Smith provided a helpful written submission on behalf of the Respondent in which she supported the appeal on both grounds identified by Judge Butler, and invited the UT to allow the appeal and remit the case to the FTT. I have adopted some of the points made in my analysis below.

I consider that the FTT erred in law for the two reasons identified by Judge Butler in the grant of permission to appeal, and supported by Ms Smith in her submission.

The issue for the FTT was whether the Appellant had a “good reason” (see sections 26 and 26 of the Welfare Reform Act 2012) to fail to attend the telephone interview on 24 December 2024.

The Appellant’s case was that he did have a good reason for non-attendance, in that he was very unwell. It is right to say that the evidence for that was unclear. However, the context of that claim was that the Appellant had been feeling unwell on 11 December 2024, as the FTT accepted at SOR 15, and further, that by 15 January 2024, he had been so unwell that he had been admitted to hospital on an emergency basis, had been unresponsive with internal bleeding, and that he was observed to be experiencing delirium. That resulted in a hospital admission which lasted for over 7 weeks, and the FTT had evidence from the hospital about the circumstances of that admission. Whilst it certainly does not follow from that that the FTT was bound to accept that the Appellant was ill, so as to justify non-attendance, 3 weeks before that, it can at least be said that the claim to have been ill in this was consistent with what later occurred.

At SOR 14, the FTT treated as critical that the Appellant had stated on 10 January 2025 that he was “on a train” on 24 December 2024, which it regarded as inconsistent with his claim to have been unwell on this day. I can see the FTT’s point on this, in itself, although I would not necessarily accept that being on a train is inconsistent with the Appellant’s claim to have been suffering from delirium, seizures and unable to function on that date. Further, there appears to be a question mark over the Appellant’s state of mind on 10 January 2025, which is when he made the statement about being on a train two weeks earlier. This was only five days before his admission to hospital, at which point it is accepted that he had become extremely ill and delirious. There must therefore be a real question about the appropriateness of relying on what the Appellant had said on 10 January as a basis to contradict his claim, in the appeal forms, to have been unwell on 24 December. This is the kind of point which might usefully, in my judgment, have been explored with the Appellant at an oral hearing.

That is the context for the two points identified by Judge Butler. Rule 27 of the Tribunal Procedure (First-tier Tribunal) Rules 2008 (“the FTT Rules”) provides as follows:

This was described by Judge Wright in DT v SSWP [2019] UKUT 268 (AAC) as a “strong” duty, because the FTT must hold a hearing unless both conditions are satisfied. The condition in rule 27(1)(b) will only be met where the FTT is satisfied that it is able to decide the matter in accordance with the “overriding objective” in rule 2 of the FTT Rules, of dealing with a case “fairly and justly” (see Judge Poynter in JP v SSWP [2011] UKUT 459 (AAC)), and it is a matter which the FTT must not only address as a “preliminary issue”, in considering whether to embark on consideration of the appeal, but throughout the decision—making process up to the point of making a decision (Judge Wright in DT, paragraph 8). In both JP and DT, the UT was critical of the quality of reasons given by the relevant tribunal for being satisfied that no hearing was necessary. In JP, Judge Poynter said that what is required is “an explanation, however brief, of why the tribunal concluded [the criteria in rule 27] are satisfied”. On general principles concerning reasons (South Bucks DC v Porter (No 2) [2004] 1 WLR 1953), the extent of the explanation required may vary according to the nature of the issues in the case.

In this case, the FTT said merely that “in view of the matters to be decided and the available information the Tribunal considered that it was in the interests of justice to deal with the matter on the papers”. That really does no more than what Judge Poynter said was inadequate in JP, of stating the FTT’s conclusion, rather than explaining it. It does not, in fact, address the statutory question, of whether the FTT was able to decide the case fairly and justly, albeit I would accept that it is close enough to that that I would not find it to be inadequate on this basis alone.

Given the way that the FTT expressed itself, it is not clear whether it made the error identified by Judge Wright in DT, of treating the rule 27(1)(b) question only as a preliminary issue, prior to embarking on a consideration of the merits, but it is certainly possible to read SOR 5 in that way given its place in the SOR and the reference to the issues “to be decided”. Whether or not that is so, in my judgment a real issue arises as to the fairness of proceeding without a hearing once one reaches that point in the SOR where the FTT relies upon an inconsistency between what the Appellant had said on 10 January about being on a train on 24 December, and his claim to have been so unwell on this date that he could not attend the interview. That is also affected by the FTT’s reliance on the further inconsistency identified at SOR 15, and, as submitted by Ms Smith for the Respondent:

In these circumstances, I cannot be satisfied that the FTT addressed its mind to the question posed by rule 27(1)(b), as to its ability to decide the case fairly and justly without a hearing, in light of its finding that the Appellant’s claim to have been unwell was inconsistent with what he said on 10 January. I therefore consider that the FTT erred in law at least by failing to give reasons for its conclusion on this issue.

The other point identified by Judge Butler concerns the FTT’s failure to exercise its inquisitorial jurisdiction. Ms Smith drew my attention to the decision of Lady Poole, sitting in the Upper Tribunal for Scotland, in NB v Social Security Scotland 2023] UT 35, as a recent decision on the inquisitorial function of social security tribunals (as to which, the difference between the FTT and the Scottish Tribunal system is not material), and the need for tribunals to consider the exercise of their inquisitorial function in the face of what appears to be incomplete or inadequate evidence. More generally, the inquisitorial nature of proceedings in social security tribunals is established by Kerr v Department for Social Development [2004] 1 WLR 1372. Importantly, the inquisitorial nature of the process means that “strict notions of the burden of proof may be inappropriate” (per Baroness Hale at paragraph 53).

Applying that here, I am satisfied that the FTT was not alive to, or did not properly consider the exercise of, its inquisitorial function. The FTT makes plain in a number of places that it based its decision on the “available” evidence, and it is clear that the decision might, at least, have been different if further evidence had been supplied about the Appellant’s medical circumstances in December 2024. Ms Smith is correct, in the passage quoted above, to say that the FTT itself proceeded on the basis that the evidence was limited and incomplete. That is precisely the kind of case where the FTT needs to give careful consideration to the exercise of its inquisitorial powers.

The factual context which I have already described, including the limits in the evidence, are important to this conclusion, but I am also concerned by what the FTT said at SOR 9, about the “responsibility of the claimant to … provide information and evidence … to explain why he has not complied”. That can be read as suggesting a burden of proof on the Appellant, especially when read with SOR 16, about not being “satisfied on the basis of the evidence provided …”.

The statement at SOR 9 seems to be taken verbatim from the Respondent’s written submission to the FTT, where the source for that proposition is said to be regs 38(2) and (3) of the UC, PIP, JSA and ESA (Claims and Payments) Regulations 2013 (“the C&P Regs”). However, those provisions do not relate specifically to demonstrating “good reason” for non-attendance in UC cases, nor indeed to UC cases specifically. Reg 38(2) provides that a benefit claimant must provide information and evidence when requested to do so by the Secretary of State. They do not, in my judgment, impose a general burden of proof on claimants specifically in relation to “good reason” cases in the UC context, and certainly do not impose such a burden of proof in the context of inquisitorial proceedings before the FTT or somehow override the approach established in Kerr.

In those circumstances, in my judgment the approach of the FTT was inconsistent with the discharge of its inquisitorial function, as established in Kerr, either because it relied upon the Respondent’s submission as showing that the burden of proof, in this particular context, lay on the Appellant, or at least because, perhaps misled by this submission, it failed to properly consider whether this was a case where it should direct further evidence or give the Appellant an opportunity to fill in the gaps created by the limited evidence that was available in accordance with the proper exercise of that function.

I therefore allow the appeal, and set aside the FTT’s Decision.

There will therefore need to be a fresh hearing of the appeal before a new First-tier Tribunal. This will be a complete re-hearing of all issues in the appeal.

Bearing in mind the basis on which I have decided the appeal, it would be sensible for the Appellant to consider afresh whether he wishes to have an oral hearing, or to provide further evidence or submissions. I have made directions which allow for this to occur. In the event that the Appellant does not take up this possibility, the FTT itself will need to consider what if any directions it should make regarding the further conduct of the appeal.

I therefore conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)). My decision is also as set out above.