SD v Secretary of State for Work and Pensions

The decision of the Upper Tribunal is to DISMISS the appeal. The decisions of the First-tier Tribunal sitting in Bradford on 1 September 2022, under file reference numbers SC007/16/02940 and SC007/19/02904 do not involve a material error on a point of law. The First-tier Tribunal decisions therefore stand. This decision is made under section 11 of the Tribunals, Courts and Enforcement Act 2007. REASONS FOR DECISION Introduction

1. This is an appeal by SD (“the Appellant”) against the decisions of the First-tier Tribunal (“FtT”) (case reference numbers SC007/16/02940 and SC007/19/02904) dated 1 September 2022 in respect of the Appellant’s claim for Industrial Injuries Disablement Benefit (“IIDB”). Factual background

2. The Appellant had been involved in three accidents. The first was a non-work-related motorcycle accident, in 2003, resulting in injuries to both his physical health (back, ribs, soft tissue shoulder injury and fracture of the left ankle) and his mental health (PTSD and depression). The second was a work-related road traffic accident in late 2011, when he was struck from the rear by another vehicle. He sustained injuries to his neck, shoulder and back. He had largely recovered from these injuries, and had returned to work, when he suffered a further work-related road traffic accident on 21 October 2013, (“the 2013 accident”). This involved a car driving into the back of the Appellant’s work vehicle whilst he was stationary.

3. It is the 2013 accident to which this appeal refers. For the avoidance of doubt, all parties agree that there was no claim for IIDB following the 2011 work related accident.

4. Following the 2013 accident, the Appellant made a claim for IIDB. On 16 September 2014, the Secretary of State determined that the Appellant had suffered 45% disablement as a result of the accident, comprising 20% spinal impairment, 10% upper limb, 10% lower limb and 5% for mental trauma. IIDB was awarded on this basis until 15 September 2016 (a provisional award).

5. On 5 October 2016, the Secretary of State reviewed the award and determined that the Appellant no longer suffered any disablement from 15 September 2016. This brought the award to an end.

6. The Appellant appealed against the decision of the 5 October 2016 (case reference SC007/16/02940). The matter was heard before the FtT on 10 July 2017, when the appeal was allowed. The FtT determined, on this occasion, that the Appellant continued to suffer 14% disablement from 15 September 2016 to 14 September 2019, thus extending the award until the later date. This FtT decision was later set aside on appeal to the Upper Tribunal, and the matter was remitted back to the FtT for re-determination.

7. In the meantime, the Appellant reported a worsening of his condition, resulting in a decision of the Secretary of State, dated 5 September 2019, that the Appellant no longer suffered any disablement from the 2013 accident as of 15 September 2019. This brought the award, that had been extended by the FtT on 10 July 2017, to an end. The Appellant appealed the decision of 5 September 2019 (case reference SC007/19/02904), and the appeal was heard by the FtT on 1 September 2022. The FtT also heard the remitted appeal in respect of the Secretary of State’s decision dated 5 October 2016 (case reference SC007/16/02940) on that same date. The First-tier Tribunal’s decisions

8. On 1 September 2022, the FtT allowed the appeal against the Secretary of State’s decision dated 5 October 2016 (case reference SC007/16/02940), thus setting aside that decision to bring the Appellant’s award to an end as of 15 September 2016. The FtT determined that the award should continue until 15 September 2019 in the following manner; the Appellant had suffered 32% disablement from 16 September 2016 to 15 September 2017, reducing to 22% disablement from 16 September 2017 to 15 September 2018, and reducing further to 14% from 16 September 2018 to 15 September 2019. In making this award, the FtT took into account the Appellant’s pre-existing mental health conditions and fibromyalgia. This was made a final award.

9. The FtT dismissed the appeal against the Secretary of State’s decision dated 5 September 2019 (case reference SC007/19/02904), thus confirming the decision to bring the Appellant’s award of IIDB to an end as of 15 September 2019.

10. The Appellant did not attend the appeal hearing before the FtT on 1 September 2022, therefore the FtT considered both decisions of the Secretary of State in his absence. The Appellant thereafter asked for the decisions of the FtT from that date to be set aside. He attached a medical report, dated October 2022, to his request to have the decisions set aside. This request was refused on 19 January 2023. The FtT prepared a Statement of Reasons (“SOR”), dated 20 April 2023, following receipt of which, the Appellant sought permission to appeal the decisions to the Upper Tribunal. The FtT refused permission to appeal by decision dated 6 July 2023. Permission to appeal

11. Permission to appeal was granted by the Upper Tribunal on 25 April 2024 on two grounds: (i) “[i]t is arguable that the FtT materially erred in law by failing to make a finding as to when the Appellant’s fibromyalgia started, or at least when its symptoms first started to present themselves, as this may have had a bearing on the outcome of the case.” (ii) “[i]n line with the reasoning in KH (Deceased) v SSWP [2021] UKUT 189 (AAC), it is arguable that the judge’s sole decision as to the weight and relevance of the October 2022 report (“extremely unlikely to have altered the Tribunal’s’ decisions”), which resulted in his decision not to set the FtT’s decision aside, was in error of law, as the assessment of evidence which bears relevance on the final decision in a case, is a matter for the tribunal as a whole (comprising judge and medically qualified member) to determine. It is also arguable therefore, that the FtT materially erred in law by failing to exercise its discretion, provided by Rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, to set aside its decisions of 1 September 2022, due to the absence of this report.” ANALYSIS Ground of appeal (i):

12. The first ground of appeal finds it arguable that the Tribunal materially erred in law by failing to make a finding as to when the Appellant’s fibromyalgia started, or at least when the symptoms first started to present themselves, as this may have made a difference to the outcome of the case.

13. In relation to the fibromyalgia experienced by the Appellant, the FtT considered medical reports from Dr McNamara (April 2017), Dr McKenna (August 2017), Dr Jarman (June 2017) as well as a report requested by the Secretary of State and prepared by Dr Hellewell (February 2019). Dr McKenna concluded in his 2017 report that: “…on the balance of probability, …[the Appellant] had pre-existing fibromyalgia, and had a temporary exacerbation of this condition following the accident in 2011 and a more significant exacerbation of pre-existing fibromyalgia following the accident in October 2013” (FtT bundle, page 130)

14. On 1 September 2022, the FtT determined: “…[The Appellant] had indeed been suffering from fibromyalgia and mental health difficulties prior to the October 2013 accident so as to also account for some disablement after it, but that theyhad been exacerbated by that accident”. (SOR, paragraph 18) It did not make a finding as to when the fibromyalgia started.

15. When seeking a set aside of the FtT’s appeal decision, [SD] submitted a letter from Dr McKenna dated October 2022. This was the same Dr McKenna who had prepared the August 2017 medical report that had been taken into consideration by the FtT in making its decision. In this subsequent letter dated October 2022, Dr McKenna stated that given [SD]’s return to work after the 2003 accident, with significant travel demands: “it is more likely that the 2003 accident increased his vulnerability [to fibromyalgia] and the accident in 2011 then triggered fibromyalgia… [which was] exacerbated by the accident in October 2013.” (FtT bundle, page 250)

16. While the August 2017 report suggests that [SD]’s fibromyalgia was in existence prior to the 2011 accident, the October 2022 letter suggests that it started as a result of the 2011 accident. Both reports agree that the fibromyalgia was in existence prior to the 2013 accident, and indeed the FtT made a finding that the Appellant’s fibromyalgia was in existence prior to the 2013 accident. The question before the Upper Tribunal was whether the FtT had materially erred in law by failing to make a finding as to the precise start date of the Appellant’s fibromyalgia. The submissions

17. The Appellant submits that it was the 2011 accident that caused his fibromyalgia, and it had not been pre-existing prior to that accident. Dr McKenna’s 2017 report suggested that fibromyalgia had been in existence prior to the 2011 accident, exacerbated temporarily by that accident and then further exacerbated by the 2013 accident. Dr McKenna’s October 2022 letter then clarifies the position, as outlined by the Appellant, namely that the 2011 accident triggered the Appellant’s fibromyalgia, and the 2013 accident aggravated it, thus adding to the disablement arising directly from the 2013 accident.

18. The Appellant submits that he was able to return to work before the 2013 accident, despite the fibromyalgia which he submits started in 2011, therefore any disablement following the 2013 accident is directly linked to that 2013 accident and not to any previous condition or prior accident (i.e. the direct injuries arising from the 2013 accident as well as the aggravated fibromyalgia symptoms). He believes that if the FtT had considered Dr McKenna’s October 2022 report, it would have had the opportunity to consider the conflict in opinion, and he believes that the FtT’s decision may well have been different. While the Appellant was not entirely clear as to how he considers the FtT’s decision would have differed, he presumably took the view that if his fibromyalgia had resolved by the time of the 2013 accident such that he was able to return to work, then the exacerbation of the fibromyalgia as a result of the 2013 accident ought to have increased, or at least prolonged, his award i.e., the fibromyalgia should not have been offset against the disablement calculation as it had largely settled prior to the 2013 accident. He maintains that the symptoms from his injuries following the 2013 accident continue to persist as of the date of the Upper Tribunal appeal.

19. Mr Howells, on behalf of the Secretary of State, contends that it was not necessary for the FtT to make a determination as to the precise date that the fibromyalgia started. His starting point is that it was the 2013 accident that the FtT were asked to consider on appeal. The FtT determined that the fibromyalgia was existing prior to the 2013 accident and that the 2013 accident had exacerbated those symptoms. It is fair to say at this point, that this concurs with Dr McKenna’s opinion in both reports and the FtT were entitled to agree with this opinion. Indeed, the Appellant agrees that the fibromyalgia started in 2011 and therefore pre-existed before the 2013 accident, so there can be no dispute with this finding.

20. Mr Howells submits that the FtT distinguished between the injuries resulting from the 2013 accident, including the resulting exacerbation of fibromyalgia, and any other medical conditions, when assessing the Appellant’s disablement (see paragraph 19 of the SOR) therefore no further finding of fact was required. The FtT concluded that it was more likely that the Appellant’s accident-related injuries would steadily improve over time, and thus the award should incrementally reduce rather than suddenly end, as had been determined by the Secretary of State on 5 October 2016. It therefore reasoned that a stepped reduction in the award was most appropriate, taking account of the fact that as his accident-related injuries improved over time, the pre-existing and unrelated fibromyalgia would continue to cause some disablement, the latter typically being a long-term illness. Mr Howells concludes that a finding as to when the fibromyalgia began would have made no material difference to the outcome of the case therefore by failing to make such a finding, he submits that the FtT did not err in law. The Law

21. By virtue of s.94(1) of the Social Security Contributions and Benefits Act 1992 (“SSCBA”) industrial Injuries benefit is payable to an employed earner who suffers personal injury as a result of an accident arising out of, and in the course of, their employment. Section 103 of the SSCBA provides that “an employed earner shall be entitled to disablement pension if he suffers as the result of the relevant accident from loss of physical or mental faculty….” The assessment of the loss of physical or mental faculty, also referred to as “disablement”, is determined in accordance with Schedule 6 to the SSCBA. Paragraph 1(5) of Schedule 6 provides that “the extent of disablement shall be assessed, by reference to the disabilities incurred by the claimant as a result of the relevant loss of faculty” and the FtT shall take account of all disabilities incurred by the accident in the relevant period, with comparison against a person of the same age and sex whose physical and mental condition is normal, subject to the any exceptions contained in the remaining subsections (paragraph 5(1)(a)). Paragraph 5(1)(b) of Schedule 6 to the SSCBA, and Regulation 11 of the Social Security (General Benefit) Regulations 1982 make provision for the FtT to offset any injuries or disablement arising from pre-existing conditions, to the extent that they would have impacted upon the claimant’s life regardless of whether the work-related accident (and resulting disablement) had occurred. In other words, the off-setting allows for the effects of a pre-existing illness alongside the injuries directly resulting from the work-related accident, and reduces the award accordingly. Analysis

22. The issue to be determined by the FtT was the extent of the disablement arising from the 2013 accident. This is assessed under Schedule 6 to the SSCBA, on the basis of disabilities incurred from the relevant loss of faculty which arises from an employment related accident. The Appellant applied for disablement pension on the basis of injuries sustained from the 2013 accident therefore the disabilities incurred due to the loss of physical and/or mental faculty arising from that accident is what the FtT correctly took account of in its assessment of disablement. Regulation 11 of the Social Security (General Benefit) Regulations 1982 required the FtT to consider pre-existing conditions and offset any disablement calculation against the percentage disablement caused to the claimant by any such pre-existing, and non-work related, illness(es).

23. It was common ground between the Secretary of State’s decision and that of the FtT, that the 2013 accident had caused physical injuries to the Appellant’s back, neck, shoulder, knees and hips. A comparison of the decision of the Secretary of State and that of the FtT (dated 1 September 2022), showing the offsetting made by the FtT as a result of the pre-existing fibromyalgia, is set out in the table below: SoS (5/10/16) FtT (decision dated 1/9/22) 16/9/14-15/9/16 Starting point 16/9/16-15/9/17 16/9/17-15/9/18 16/9/18-15/9/19 Spinal 20% 20% 10% (offset 10%) 5% (offset 15%) 0% Upper Limb 10% 14% 14% 14% 14% Lower Limb 10% 10% 5% (offset 5%) 3% (offset 7%) 0% Mental trauma 5% 10% 3% (offset 7%) 0% 0% TOTAL 45% 54% 32% 22% 14% Table 1: Comparison of decisions

24. Essentially, the FtT determined that the Appellant had a 54% disablement following the 2013 accident which was higher than the 45% starting point determined by the Secretary of State. The FtT found that “[the Appellant] had indeed been suffering from fibromyalgia and mental health difficulties prior to the October 2013 accident so as to also account for some disablement after it, but that they had been exacerbated by that accident. Although [the Appellant] had described being happy in his work prior to the [2013] accident, Dr McKenna had highlighted that ‘the persistent musculoskeletal symptoms with the complaints of tiredness were features of fibromyalgia that were present prior to the accident in October 2013… as time went by, this pre-existing condition, and [the Appellant’s] mental health difficulties… would account for more and more of [his] continuing health related difficulties. But we considered it medically unlikely that his level of disablement resulting from the accident would go so abruptly from 45% on the 15th September 2016 to 0% (or even 14% as subsequently appears to have been accepted by the Respondent) thereafter as the decision under appeal would suggest… Instead, it is medically probable that the causative effects of the accident itself – occurring in the context of pre-existing medical conditions – would have reduced incrementally each year.” (paragraph 18 of the SOR)

25. The FtT identified Regulation 11 and noted that “the resulting disablement for the subsequent years included a level of offsetting for [SD]’s pre-existing health conditions” (paragraph 19 of the SOR), which was based upon the evidence of Dr McKenna’s August 2017 report. The FtT found that the pre-existing fibromyalgia had been exacerbated by the 2013 accident, affecting the Appellant’s spine and lower limbs (according to the evidence they noted from Dr McNamara and Dr McKenna) and not simply his shoulders (paragraph 16 of the SOR), concluding that the disablement to the Appellant’s spine and lower limbs between 2016 and 2017 was due equally to the 2013 accident and his pre-existing fibromyalgia (paragraph 19 of the SOR). This conclusion, and the increased disablement starting point, essentially equates with the Appellant’s argument, that his pre-existing fibromyalgia, which was aggravated by the 2013 accident, had caused his injuries from the 2013 accident to be worse than they otherwise would have been. Consequently, the FtT offset the disablement calculation for those aspects by half for that year, and continued the stepped reduction thereafter to allow for the fact that the injuries from the accident improved over time but the fibromyalgia symptoms continued, the latter having initially contributed to an award as a result of the 2013 accident. It concluded that there was an offset of 7% in respect of the Appellant’s mental health difficulties for the first year of the award, but determined that there was no longer any mental health difficulties resulting from the 2013 accident from 16 September 2017. The FtT indicated that in the final year of the award, “only the shoulder disablement of 14%… was persisting as a result of the accident, albeit now in its final year due to the pre-existing fibromyalgia” (paragraph 21 of the SOR). The FtT determined that the Appellant’s disablement from the 2013 accident ceased to have effect from 15 September 2019 therefore any continued symptoms from that date must have been as a result of the pre-existing fibromyalgia, which while worsened by the 2013 accident, continued to have effect on the Appellant beyond the resolution of his direct 2013 accident injuries.

26. Permission to appeal was granted on the thinking that an earlier start date of fibromyalgia may mean that it was worse by the date of the 2013 accident and therefore when the 2013 accident exacerbated it, the impact of the exacerbated fibromyalgia would have been worse, thus impacting upon the disablement calculation. In that case however, had the pre-existing fibromyalgia been worse, that may have served to increase the offsetting, rather than reduce it. In such a situation, the Appellant’s calculation may have been less that that awarded by the FtT on 1 September 2022. In any event, the Appellant’s case is that the fibromyalgia was such that by the 2013 accident, it was sufficiently manageable to allow him to return to work, therefore this initial line of thought is not sustainable. Indeed, regardless of the start date of the fibromyalgia, the Appellant’s case, supported by the medical evidence of Dr McKenna, is that his fibromyalgia had settled to a manageable level prior to the 2013 accident. The start date cannot therefore be relevant in the manner originally envisaged.

27. In this appeal, the FtT were concerned only with the disablement that arose from the 2013 accident. All parties are in agreement that fibromyalgia was in existence prior to the 2013 accident and therefore not caused by the 2013 accident. While the 2013 accident made the fibromyalgia worse, this was accounted for within the disablement calculation of the FtT, i.e. it formed part of the consideration of the impact of the 2013 injuries, and it caused the FtT to increase the starting point for the award. The FtT also took account of the fact that the worsened fibromyalgia caused the injuries to persist longer than they otherwise would have, concluding that the injuries arising from the 2013 accident had stopped by 15 September 2019, and any further disablement to the Appellant was as a result of injuries from other causes (the pre-existing fibromyalgia).

28. A failure to resolve an issue of fact only amounts to an error of law if the issue is material (PR v SSWP [2021] UKUT 35 (AAC)). The start date of the fibromyalgia was immaterial because the FtT was only entitled to consider the injuries resulting from the 2013 accident and the fibromyalgia was already in existence prior to that accident. Instead, the FtT was required to offset the impact of any pre-existing injuries/illnesses in determining the award of IIDB and this is precisely what it did. The FtT clearly identified the impact of the accident, including “the resulting exacerbation of fibromyalgia” and other causes when assessing disablement (paragraph 19 of the SOR). It determined the relevant percentage and reasoned that conclusion more than adequately, in line with the medical evidence before it. I find myself in agreement with Mr Howells on behalf of the Secretary of State, that no further fact finding was required in respect of the pre-existing fibromyalgia, hence the FtT did not materially err in law by failing to determine the start date of that condition. This ground of appeal does not succeed. Ground of appeal (ii): Failure to set aside the decision on new evidence

29. Permission to appeal was also granted on the arguable ground that the FtT materially erred in law by failing to exercise its discretion to set aside its decisions of 1 September 2022, under Rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (“the FtT Rules”). In his request to set aside the decision, the Appellant enclosed a letter from Dr McKenna dated October 2022, which he considered would influence the FtT’s decision in his appeal. This letter had not been before the FtT on 1 September 2022, when making its decision in the Appellant’s case.

30. In refusing to set the decisions aside, the FtT Judge stated, at paragraph 6 of his decision dated 19 January 2023: “I have also considered further Dr McKenna’s report dated “October 2022” which [SD] sent with his request of 7th September 2022 in making my decision to refuse a set aside, which the Tribunal did not have when making its decisions on 1st September 2022. Although relevant, this report is extremely unlikely to have altered the Tribunal’s decisions of 1st September 2022. Indeed, in stating that the 2013 accident in question exacerbated pre-existing fibromyalgia and that, in 2017, he had a significant disability as a result of his fibromyalgia, Dr McKenna tends to confirm the Tribunal’s view of the evidence already contained in the bundle (which the Tribunal considered was ample to make a fair decision) as well as the Tribunal’s resulting decision – that, as a result of the 2013 accident, he had 32% disablement from Sep 16 – Sep 17; 22% disablement from Sep 17- Sep 18; and 14 % disablement from Sep 18-Sep

19. Although Dr McKenna (a consultant physician and rheumatologist) also refers to continuing psychological disability resulting the [sic] 2011 and 2013 accidents, the Tribunal (which included a consultant psychiatrist) included disablement for mental health from Sep 17 – Sep 17 within its decision.”

31. Dr McKenna had presented a slightly different opinion in his second report, dated October 2022, compared to his first, dated August 2017, which arguably created conflict of facts which required resolution by the tribunal in making its decision on 1 September 2022. It was found to be arguable that the Judge’s sole view, that had Dr McKenna’s October 2022 report been before the FtT it would not have altered the Tribunal’s decisions, was in error of law. The assessment of evidence which bears relevance on the final decision in a case is usually a matter for the tribunal as a whole, comprising judge and medically qualified member, to determine. The power to set aside

32. The FtT’s power to set aside a decision is outlined in Rule 37 of the FtT Rules which states as follows: Setting aside a decision which disposes of proceedings

37. —(1) The Tribunal may, on the application of a party or on its own initiative, set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision, or the relevant part of it, if— (a) the Tribunal considers that it is in the interests of justice to do so; and (b) one or more of the conditions in paragraph (2) are satisfied. (2) The conditions are— (a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party's representative; (b) a document relating to the proceedings was not sent to the Tribunal at an appropriate time; (c) a party, or a party's representative, was not present at a hearing related to the proceedings; or (d) there has been some other procedural irregularity in the proceedings. (3) A party applying for a decision, or part of a decision, to be set aside under paragraph (1) must make a written application to the Tribunal so that it is received no later than 1 month after the date on which the Tribunal sent notice of the decision to the party. (4) If the Tribunal sets aside a decision or part of a decision under this rule, the Tribunal must notify each party in writing as soon as reasonably practicable.

33. To set aside a decision of the FtT which disposes of proceedings, this rule requires, firstly, that a procedural irregularity took place during proceedings. The procedural irregularity may be one of the three specified in Rule 37(2)(a)-(c) or “some other procedural irregularity” as provided for by Rule 37(2)(d). This is a matter of fact. Thereafter, the FtT must consider that it is in the interests of justice to set the decision aside. This is a discretionary judgement for the tribunal. For the avoidance of doubt, the decisions of 1 September 2022 were decisions that disposed of proceedings and were capable of being set aside. Analysis

34. The Appellant made his set aside application on the basis that he had not been present at the appeal hearing before the FtT, and also that the FtT should take account of Dr McKenna’s October 2022 report in making its decision. The first aspect of his application was considered at the permission hearing and found not to amount to an arguable ground of appeal. This point will be taken no further. However, the medical report had the potential to satisfy the condition in Rule 37(2)(b) which provides for the situation where “a document relating to the proceedings was not sent to the Tribunal at an appropriate time” i.e., not in time for the FtT to consider it at the appeal hearing.

35. The Appellant’s case is that the FtT should have set aside its decisions so that Dr McKenna’s October 2022 report could go before the panel. He believes that the panel’s decision would be different. He considers it to be an error of law for the FtT not to have set its decisions aside for this purpose.

36. Mr Howells, on behalf of the Secretary of State, highlights that the second report of Dr Mckenna, dated October 2022, did not exist at the time when the FtT heard the appeal on 1 September 2022, and for this reason the FtT had no power to set its decisions aside. He raises the case of McCalla v Secretary of State for Defence [2024] EWCA Civ 1467, which considered a decision refusing permission to appeal to the Upper Tribunal and the equivalent power to set aside a decision that disposes of proceedings contained within Rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Holgate LJ makes it clear, at paragraphs 54 and 56 of the decision, that for the condition in Rule 37(2)(b) to apply, the document must have existed prior to the date of the decision that a party to proceedings seeks to have set aside. “54. But a document could only have been "sent" to the UT at "an appropriate time", i.e. before the determination of the application for permission to appeal, if it existed at that time…

55. There was no procedural error in the handling of the application for permission to appeal in the UT up to the decision to refuse on 14 November 2023. For example, the appellant did not indicate to the UT that he was expecting to receive a medical report, nor did he ask the UT to defer consideration of his application until he was in a position to be able to submit a report, which the tribunal then disregarded. The UT was not asked to consider exercising its power under rule 15(2)(a) of the 2008 Rules when determining the application for permission to appeal. Instead, simply by relying upon the subsequent production of a document… the appellant seeks to create an ex post facto error in the earlier procedure leading to the refusal of his application for permission to appeal, where no procedural error had previously occurred.

56. For the reasons sets out above, rule 43(2)(b) does not enable an unsuccessful applicant for permission to appeal to rely upon a document he creates or obtains after that refusal of permission to appeal (or other decision sought to be set aside). Accordingly, in my judgment the appeal must fail. But the appeal also fails for other reasons…”

37. In the present case, Dr McKenna’s report of October 2022 did not exist when the FtT made its decision on 1 September 2022, therefore in line with the reasoning in McCalla, the condition within Rule 37(2)(b) cannot be satisfied.

38. If a different procedural irregularity took place, then the FtT could have engaged the set aside power in Rule

37. I note from the FtT file, that this case had a long and complicated history of adjournments, usually at the request of the Appellant who was unable to attend his hearing or who sought to obtain representation for his hearing. I note that an appeal decision made on 29 March 2021 was set aside as the Appellant had not been present at that hearing (he had not received the letter informing him of the hearing date). Following this hearing, on 12 April 2021, the Appellant emailed the FtT indicating that he wanted a further report from either Dr Jarman or Dr McKenna, to assist with his case. His appeal was re-listed for 7 October 2021.

39. On 28 September 2021, the Appellant requested that the FtT appeal hearing listed for 7 October 2021 be adjourned in order to obtain further medical evidence from Dr Jarman or Dr McKenna. He commented that Dr McKenna was difficult to contact. This request was refused on 29 September 2021. The Appellant repeated his request for an adjournment on 6 October 2021 for the same reasons. The FtT Judge reluctantly, but very fairly, agreed to adjourn the appeal hearing, which was listed for the following day (7 October 2021), thus allowing time for the evidence to be obtained.

40. The Appellant’s appeal hearing did not proceed on its next listing date of 13 January 2022. It was re-listed once again for 1 September 2022. The Appellant did not attend the FtT appeal hearing on 1 September 2022, nor did he seek to adjourn the hearing to obtain further medical evidence from Dr McKenna. He raised the matter on 7 September 2022, after the FtT had heard his appeal, which was approximately 17 months after his initial indication that he wished to obtain further evidence from Dr McKenna (on 12 April 2021). It cannot therefore be suggested that the FtT unreasonably refused to adjourn the appeal hearing to allow time to obtain a second report from Dr McKenna, as it had done so on numerous occasions. The Appellant had not obtained it. There was no procedural irregularity in how the FtT handled Dr McKenna’s October 2022 report. There was no other procedural irregularity that had taken place during the FtT’s proceedings.

41. In granting permission to appeal, I referred to the case of KH v Secretary of State for Work and Pensions [2021] UKUT 189 (AAC). In this case, the FtT determined an appeal on 11 November 2019, and the Appellant sought to set aside the FtT’s decision of that date by virtue of a medical report dated 13 August 2019. The report pre-dated the FtT hearing but had not been sent to the FtT at the appropriate time. The Upper Tribunal determined that the condition in Rule 37(2)(b) had been satisfied in those circumstances and therefore the FtT needed to proceed to the second element of the set aside test, i.e., to consider whether it was in the interests of justice to set its decision aside. The case of KH is clearly distinguishable on the basis that the medical report on which the Appellant relied upon to set the FtT’s decision aside, was in existence prior to the date of the FtT’s appeal decision. It does not assist the Appellant’s case.

42. Ultimately, there was no procedural irregularity identified within the facts of the Appellant’s case which required the FtT to consider the second aspect of the set aside test, i.e., to consider whether it was in the interests of justice to set the decision aside as a result of the procedural irregularity. The FtT did not materially err in law in its determination not to set aside its decisions of 1 September 2022, as the conditions within Rule 37 of the FtT Rules were not satisfied. Ground (ii) cannot succeed.

43. Had there been a procedural irregularity, which I have determined there was not, then the FtT would have gone on to consider the interests of justice test. It is at this point that the tribunal exercises its discretionary judgement and the question arises as to whether the Judge alone could determine whether Dr McKenna’s October 2022 report would not have impacted upon the decision of the FtT, and consequently it was not in the interests of justice to set the decisions aside. The Appellant argues that the Judge alone could not have made this decision. Mr Howells submits that this was a decision that could be made by a single judge based on the Practice Direction “Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 01 August 2013” (dated 31 July 2013) (“the Practice Direction”) which was in force on 1 September 2022.

44. The constitution of the FtT is outlined in the Practice Direction. This provides that where an appeal raises issues relating to industrial injuries benefit under Part V of the Social Security (Contributions and Benefits) Act 1992, as in the present case, “the Tribunal must, subject to paragraphs 7 to 14, consist of a Tribunal Judge and a Tribunal Member who is a registered medical practitioner” (paragraph 5(e) of the Practice Direction). Under paragraph 10 of the Practice Direction, a “decision, including a decision to give a direction or make an order, made under, or in accordance with” (among other rules) Rule 37 of the FtT Rules “may be made by a Tribunal Judge.”

45. Consequently, a judge alone is entitled to make the determination as to whether evidence not before the FtT at the time it made its decision, might have impacted upon it, as this was one of the considerations involved in making the order under Rule

37. It cannot therefore be said that the FtT erred in law by making this determination in the absence of a medical member of the Tribunal. Ground (ii) cannot succeed in both respects. Conclusion

46. For the reasons outlined above, this appeal does not succeed. While I identified two matters that may have given rise to a successful appeal, on consideration of the full extent of the submissions and of the relevant legal provisions, the grounds on which permission to appeal was granted, cannot succeed. I am grateful to both parties for their time in preparing their submissions in this case and for attending the appeal hearing. L. Joanne Smith Judge of the Upper Tribunal (Authorised for issue on) 8 October 2025