{"id":570572,"date":"2026-04-15T18:48:28","date_gmt":"2026-04-15T16:48:28","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/ms-v-secretary-of-state-for-work-and-pensions\/"},"modified":"2026-04-15T18:48:28","modified_gmt":"2026-04-15T16:48:28","slug":"ms-v-secretary-of-state-for-work-and-pensions","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/ru\/jurisprudences\/ms-v-secretary-of-state-for-work-and-pensions\/","title":{"rendered":"MS v Secretary of State for Work and Pensions"},"content":{"rendered":"
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The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions. DIRECTIONS 1. This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing. 2. The new First-tier Tribunal should not involve the tribunal judge previously involved in considering this appeal on 27 November 2024. 3. The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal. These Directions may be supplemented by later directions by a Tribunal Caseworker, Tribunal Registrar or Judge in the Social Entitlement Chamber of the First-tier Tribunal. REASONS FOR DECISION Introduction 1. The appellant seeks permission to appeal against the First-tier Tribunal\u2019s decision of 28 November 2024 refusing the appellant\u2019s appeal against the decision of the Secretary of State of 22 April 2024 that the appellant was not entitled to a Social Fund Funeral Payment in respect of his mother\u2019s funeral because his sister was not in receipt of a qualifying benefit and not estranged from his mother. 2. The First-tier Tribunal\u2019s Statement of Reasons (SoR) was issued on 21 February 2025 and permission to appeal was refused by the First-tier Tribunal in a decision issued on 28 April 2025. The appellant filed the notice of appeal to the Upper Tribunal on 8 May 2025 (in time). 3. By a decision sent to the parties on 18 June 2025 I granted permission to appeal. The Secretary of State has responded to the appeal and supports it. Both parties consent to my giving a decision on the papers without a hearing and I am satisfied that it is appropriate and in accordance with the overriding objective for me to do so in this case. The issue is a narrow one and I can fairly determine it on the papers. The grant of permission to appeal 4. In granting permission to appeal, I observed as follows:- 11. This case turns on whether the appellant is credible or not when he now says that his mother and sister have been estranged since 1991, when that was not what he said when making a telephone application to DWP. 12. Assessment of credibility is a matter for the First-tier Tribunal and can very rarely be successfully appealed. However, assessment of credibility is obviously something that is capable of being very significantly affected by whether or not the Tribunal hears oral evidence from a witness or not. 13. I consider it arguable that the First-tier Tribunal erred in law in this case by proceeding to deal with this case on the papers in the absence of the appellant. Although rule 27 permits the First-tier Tribunal to proceed without a hearing where a party has consented, it is well established that it should not do so unless it is fair and appropriate to do so, having regard to the overriding objective: see eg JP v SSWP [2011] UKUT 459 (AAC). 14. At [3] of the SoR the Tribunal explains that it decided it could fairly proceed in the absence of the appellant because the notice of appeal stated he did not want to take part in a hearing due to his health and the Tribunal considered that it was able to decide the appeal without a hearing. 15. I consider that the Tribunal\u2019s decision to proceed without giving the appellant a second opportunity to attend a hearing was arguably in error of law in two respects:- (1) It appears to have failed to take into account the relevant factor of the appellant\u2019s letter at page 71 of the bundle in which he sought to \u2018row back\u2019 from having ticked the box on the form consenting to a hearing in his absence, and states that he would attend if he was well enough and if not may send a representative. It is arguable that the Tribunal did not therefore have the appellant\u2019s unequivocal consent to proceeding in his absence and should not have done so without clarifying the appellant\u2019s position in this respect. (2) The Tribunal has failed to acknowledge in its reasons that this is an appeal that turns on credibility or to give any reasons at all as to why it considered it was fair to determine such an appeal in the appellant\u2019s absence. 16. I also consider it arguable that the Tribunal has erred in assessing the appellant\u2019s credibility in that it has failed to take into account in any meaningful sense the significance of the appellant having made the claim by telephone. Although the Tribunal mentions that fact, it has arguably failed to take into account that the appellant\u2019s answers on the form have been recorded by a DWP representative and that the appellant himself could not see the form and was answering questions orally. These are arguably relevant factors given that the appellant\u2019s grounds of appeal rely on his medical conditions and bereavements as having affected his mental functioning at that time. The response of the Secretary of State 5. The Secretary of State responded to the appeal as follows:- 9. I respectfully submit the FTT erred in law in deciding to proceed with the hearing on the papers, without considering adjourning for an oral hearing. 10. The Upper Tribunal has confirmed in DT v SSWP (UC) [2019] UKUT 268 (AAC) and in MM v SSWP (ESA) [2011] UKUT 334 (AAC) that the FTT 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 decide the appeal without holding one, and to explain why. 11. Although the appellant when applying for permission to appeal initially stated in the SSC1 form that they would not be attending the hearing (FTT bundle, page 4), the appellant then sent a further letter stating \u2018Upon putting my appeal in online I did state that I would not be attending the Tribunal but much depends on my health at the time of the Tribunal. If I feel fit enough to attend then I shall do so but if not I may send a representative.\u2019 (FTT bundle, addition A, page 1). It is, therefore, unclear whether the appellant wished for there to be an oral hearing and the FTT should have considered this at the time of the hearing. Rule 27(1) sets out the following \u2013 \u201827.\u2014(1) Subject to the following paragraphs, the Tribunal must hold a hearing before making a decision which disposes of proceedings unless\u2014 (a)each party has consented to, or has not objected to, the matter being decided without a hearing; and (b)the Tribunal considers that it is able to decide the matter without a hearing.\u2019 12. In paragraph 2 of the Statement of Reasons (SOR) the FTT state \u2018Under Rules 2 and 27 of the Tribunal Procedure Rules 2008 the Tribunal considered whether it was able to decide this appeal without a hearing\u2026\u2019 It is clear that the FTT did not fully consider rule 27, as the letter from the appellant raised the question on if consent was given by the appellant to proceed in his absence. 13. The consideration of rule 27 is a three-stage process as set out in the case of MH v Pembrokeshire CC [2010] UKUT 28 (AAC): \u2018Exercising that power 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\u2019s 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\u2019 14. As there is limited reasoning in the SOR to why the FTT proceeded with the hearing, it is also unclear whether the FTT fully considered rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. The SOR does not provide an adequate explanation for why the FTT concluded it was fair and just to conduct the hearing on papers. This amounts to an error of law. 15. Moving on to the second ground, the FTT are entitled to give weight to whatever evidence that it chooses. Where evidence is conflicting and potentially material to the outcome of a decision, the FTT have an obligation that they must in the first instance explore and consider it in a holistic manner and provide sufficient reasons explaining why it preferred the evidence that is has. 16. From reading the SOR it is clear that the FTT have not done that. Although, the FTT have considered the appellants circumstance and health conditions in paragraph 22 of the SOR which states \u2018The Tribunal has fully taken into account [the appellant\u2019s] bereavement and his health problems of anxiety and depression, agoraphobia, knee pain, diabetes and nerve pain.\u2019 There is a distinct lack of consideration as to how the circumstance and health conditions of the appellant could have impacted his answers on the claim form from the manner in which it was completed. The FTT have failed to consider that the evidence given by the appellant was over the telephone and the form was completed by the Secretary of State (SoS). The appellant did not have the form in front of him. I submit the FTT should have considered this and provide an explanation of why it has preferred the evidence it did. This I submit is an error in law. 17. Paragraph 30 in CPIP\/2651\/2015 states \u2013 \u2018In order for reasons to be adequate they must deal with material issues. There is no need to deal with criticisms that are merely captious, but where they have substance or make a serious point it may be an error of law to fail, in a statement the purpose of which is to explain to the parties why the tribunal came to the conclusion it did, to deal with them, albeit shortly. In this case the points made in the submission were thought through and required the attention of the tribunal.\u2019 18. In view of the above, the inadequacy of reasons makes it difficult for the appellant to know whether the FTT applied the correct legal tests in assessing the evidence, making its findings of fact, and arriving at its decision. 19. As such, if the UT Judge accepts my submission that the FTT have erred in law, I invite them to set aside the decision and remit the appeal for rehearing by a freshly constituted FTT. Why I am allowing the appeal 6. At the permission stage I just had to be satisfied there was an arguable error of law in the decision of the First-tier Tribunal. Before the appeal can be allowed, I have to be satisfied that there is in fact an error of law in the decision. I am so satisfied in this case. 7. In my judgment, the First-tier Tribunal erred in law in proceeding to decide the case on the papers in this case. It overlooked the appellant\u2019s indication that he may wish to attend the hearing, and failed to recognise that in an appeal such as this which turned on credibility it was unfair to proceed in the appellant\u2019s absence without giving him a second opportunity to attend a hearing. 8. Further, having reviewed the evidence in the First-tier Tribunal bundle, it seems to me that what the appellant is recorded as having said at various points about his sister April\u2019s relationship with his mother is not sufficiently clear that the First-tier Tribunal could safely reach the conclusion that she was not estranged from their mother without giving the appellant an opportunity to deal orally with the First-tier Tribunal\u2019s understanding of the documentary evidence. Conclusion 9. The First-tier Tribunal\u2019s decision was in error of law. I set the decision aside and remit the case for re-hearing before a different judge. Holly Stout Judge of the Upper Tribunal Authorised by the Judge for issue on 20 October 2025<\/p>\n<\/div>\n

\n

Sources officielles :<\/strong> consulter la page source<\/a><\/p>\n

Open Justice Licence (The National Archives).<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions. DIRECTIONS 1….<\/p>\n","protected":false},"featured_media":0,"template":"","meta":{"_crdt_document":""},"kji_country":[7608],"kji_court":[9033],"kji_chamber":[],"kji_year":[8463],"kji_subject":[7712],"kji_keyword":[7705,7633,9692,7916,7636],"kji_language":[7611],"class_list":["post-570572","kji_decision","type-kji_decision","status-publish","hentry","kji_country-royaume-uni","kji_court-upper-tribunal-administrative-appeals-chamber","kji_year-8463","kji_subject-social","kji_keyword-appeal","kji_keyword-appellant","kji_keyword-first-tier","kji_keyword-hearing","kji_keyword-tribunal","kji_language-anglais"],"yoast_head":"\nMS v Secretary of State for Work and Pensions - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kohenavocats.com\/ru\/jurisprudences\/ms-v-secretary-of-state-for-work-and-pensions\/\" \/>\n<meta property=\"og:locale\" content=\"ru_RU\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"MS v Secretary of State for Work and Pensions\" \/>\n<meta property=\"og:description\" content=\"The decision of the Upper Tribunal is to allow the appeal. 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