Admissibility of evidence - audio recording

JB v SSWP (PIP) [2019] UKUT 179 (AAC)
CPIP/2310/2018 2
REASONS FOR DECISION
The subject matter of this Upper Tribunal decision
1. This is a case about two procedural issues.
2. First, it is a case about appeal bundles. To be more precise, this is a case about
a Tribunal Registrar’s powers when determining which papers should be included in
(or, more particularly, excluded from) the appeal bundle that goes before the First-tier
Tribunal that hears social security and child support appeals in the Social Entitlement
Chamber
3. Second, this is a case about the admissibility of evidence. To be more precise,
this is a case about whether an audio-recording (and the associated transcript) of a
consultation with a health care professional for the purposes of personal
independence payment should be admitted in evidence by the First-tier Tribunal.
The background to this appeal to the Upper Tribunal
4. The Appellant in the present case was appealing against a decision dated 7
August 2017 that he was not entitled to personal independence payment (PIP).
There was, however, a back story to this appeal. The Appellant had first claimed PIP
in May 2013. That claim was rejected. Following an unsuccessful mandatory
reconsideration, he appealed to the First-tier Tribunal (FTT), which dismissed his
appeal in April 2015. He then appealed to the Upper Tribunal. In September 2015
Upper Tribunal Judge Hemingway allowed the appeal (under case reference
CPIP/1922/2015) and remitted the case for re-hearing before a new FTT. A fresh
FTT duly re-heard the appeal in November 2015 – and dismissed the appeal again.
In January 2016 Judge Hemingway refused permission to appeal on the ‘second time
around application’ arising out of that FTT decision (CPIP/281/2016).
5. The Appellant made a second claim for PIP in May 2016, which was refused in
July 2016. However, on this occasion the Appellant appealed successfully to the
FTT. In February 2017 a FTT found that he qualified for 6 points for daily living and 8
points for mobility, so awarding him the standard rate of the PIP mobility component
from the date of claim until 27 July 2017. There was no appeal by either party against
this FTT decision.
6. In June 2017, and so shortly before the FTT’s award expired, the Appellant was
invited to make a PIP renewal claim. This time his claim was again refused (by the
DWP decision dated 7 August 2017), as the Appellant scored just 4 points for
mobility and no points for daily living. On 14 May 2018 another FTT dismissed the
appeal. The present proceedings before the Upper Tribunal relate to that appeal
against the disallowance of the PIP renewal claim. It turns in part on how the appeal
bundle for the hearing was managed.
Appeal bundles in the First-tier Tribunal (Social Entitlement Chamber)
7. The ‘appeal bundle’ is simply lawyers’ jargon for the case papers that are put
before the court or tribunal. In that part of the FTT Social Entitlement Chamber that
deals with social security and child support appeals the basic system is simple. The
Respondent (i.e. typically the Department for Work and Pensions (DWP) but Her
Majesty’s Revenue and Customs (HMRC) for tax credit cases and local authorities
for housing benefit appeals) is required to send the FTT office a ‘response’,
principally consisting of a copy of the decision under appeal and an explanation as to
why it was made, along with relevant supporting documentation (see the Tribunal
Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI
2008/2685; “the 2008 Rules”), rule 24(1)-(5)).

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https://assets.publishing.service.gov.uk/media/5d121131ed915d3191e71dbd/CPIP_2310_2018-00.pdf