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CE/2444/2010 — Tribunal's power to alter statement of reasons / whether Upper Tribunal able to take into account reasons given without legal authority

[2011] UKUT 159 (AAC)

Background

With the claimant's appeal against a decision that he had failed the work capability assessment havin been disallowed by a tribunal, he then requested a statement of reasons for its decision.

After the claimant had received the statement of reasons and requested leave to appeal, the statement of reasons was amended to include reasons for the matters raised in the application for leave to appeal.  The presiding judge said, in the revised statement, that the extra nine lines had been omitted in the original statement of reasons 'as a result of a clerical mistake or accidental slip or omission' and so had been added under rule 36 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the tribunal rules).

A salaried judge then issued a decision saying that it was not appropriate to review the tribunal's decision as it contained no error of law.

The claimant then appealed to the Upper Tribunal

Issues before the Upper Tribunal

• whether the tribunal had the power to amend the statement of reasons under rule 36 or rule 40 of the tribunal rules; and
• whether the Upper Tribunal was able to take into account reasons given without authority.

Reasons for decision

Judge Jacobs decides that the changes to the statement were not authorised by rule 36  -

'Rule 36 is by its contents a species of slip rule and should be interpreted in accordance with the nature of that type of provision. As such, it deals with matters that were in the judge’s mind when writing but for some reason did not find their way onto the page. Typical examples are the typing error that produces the wrong date or a momentary lapse of concentration that results in the word ‘not’ being omitted. The rule does not cover matters that the judge had planned to mention but forgot to include. Obviously, it is difficult for the Upper Tribunal to know what was in the judge’s mind, but the extent of the changes are an indication. It is difficult to classify the omission of a total of nine lines of explanation as in the same category of mistake as a typing error or a momentary lapse of concentration. For that reason, I decide that the changes made by the presiding judge were not authorised by rule 36.' (paragraph 16)

Judge Jacobs also says that the changes were not authorised by rule 9(4)(b). This was because rule 9(4)(b) provides that amendments to a statement of reasons can only be made after a tribunal decision has been revised under rule 9(1) which, in turn, is governed by rule 40 which provides that a decision can only be revised where an application for leave to appeal has been received and the tribunal is satisfied that there was an error of law in the decision.

Judge Jacobs says -

'In this case, it is not possible to treat the changes as validly made under the review power. Not only was there no review under section 40, but the conditions for a review were not satisfied: the salaried judge merely said initially that there might be an error and then that there was no error on the new version of the reasons. In those circumstances, it is impossible to treat the changes as made under section 9(4)(b).' (paragraph 17).

However, Judge Jacobs says that he can see no reason why he cannot take into account the extra reasons give by the tribunal judge and goes on to say -

'My decision is that technically the tribunal’s reasons were inadequate, but having read the evidence that was before the tribunal, and taken into account the tribunal’s reasons as disclosed by the judge, I consider that the decision itself was sound in fact and law. It is not appropriate to set it aside.' (paragraph 25)

Decision

Judge Jacobs dismisses the claimant's appeal.