Upper Tribunal (Administrative Appeals Chamber)

LM [2009] UKUT 185 (AAC) (17 September 2009)
Tribunal procedure and practice (including UT)
tribunal practice

 


THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The appeal is allowed.

The decision of the tribunal given at Oban on 13 May 2009 is set aside.

The case is referred to the First tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out below.

REASONS FOR DECISION

1. The claimant was born on 2 March 1995. She has appealed against the decision of the tribunal which awarded her the lower rate of the mobility component on the middle rate of care component with disability living allowance from 2 March 2009 to 1 March 2012. The grounds of appeal are set out at pages 104 to 107. The Secretary of State does not support the appeal for reasons set out at pages 132 and 133. In my view the tribunal have erred in law as they have limited the award which they made without setting out any basis for that limitation.
2. I also consider that they have erred in law in respect that it is not clear from their Statement of Reasons nor the Record of Proceedings which element or elements of the night-time care conditions was or were in issue before them. The Letter of Appeal at page 2 appears to be directed to the night-time supervision conditions. However, the tribunal do not appear to have addressed the supervision test in terms of the statute, in that as is pointed out in the grounds of appeal the tribunal in dealing with the evidence of the Visual Impairment Social Worker said that

"[the claimant] would have coping methods to enable her to move around particularly in familiar surroundings, such as her house, even if sleepy and that if her mother accompanied her to and from the toilet during the night that, while understandable, was not help which was reasonably required."

That would imply they were considering the night-time attention conditions. The tribunal's statement is sufficiently unclear to make their decision unsafe.

3. I should perhaps add that I do not consider that the tribunal fairly reflected what was said by the social worker. What the social worker said was:

"While [the claimant] uses coping methods to move around using her limited eyesight, when she wakens up to use the toilet at night and is sleepy she will have more difficulty getting to the toilet safely because the toilet in the house is directly opposite the stair. For her safety and to prevent an accident of [the claimant] falling down the stair her mother goes with her."

The matter is material and in these circumtances I consider that the statement is flawed and erred in law on these grounds also.

4. In granting permission to appeal a full-time chairman gave following interlocutory determination.

"The Appellant has applied for permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal issued on 13/05/2009.

It is not appropriate to review the decision because adequate reasons have been provided.

The guidance of the Upper Tribunal is required in relation to the Tribunal's finding of "res judicatta" (sic)."

This is related to the passage in the statement where it is said:

"The tribunal on the facts found considered it possible, but unlikely, another tribunal would conclude on the facts found night care was necessary but specifically considered whether or not their decision was wrong in law and should be set aside on that basis. They did not so consider, which matter was now res judicatta."

I have noticed in a number of appeals before me that the Chairman of the tribunal in this appeal has in the Statements of Reasons relating to these appeals made similar observations to those quoted above.

5. It may well be that this passage and the similar passages in other statements are an endeavour, in the context of Regulations 39 and 40 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Regulations 2008, to pre-empt, on an application for leave to appeal against the decision, another chairman reviewing the decision on the basis that it erred in law.
6. When a Statement of Reasons is being given under Regulation 34 of the Rules the chairman is not at that stage dealing with any application for permission to appeal. A decision as to whether or not to review a decision under Regulation 40 can only be done once an application for permission has been received. Accordingly it was not competent for the chairman in this case on drafting the Statement of Reasons to consider whether or not the decision of the tribunal was wrong in law and whether it should be reviewed. It is further not possible for him at the start of writing a Statement of Reasons to prevent such a review being carried out. In the event such a review was not carried out and a full-time chairman granted permission to appeal. This appeal was properly before the Upper Tribunal on the basis of permission granted by her. I agree with what is said by the claimant's representative in the last full paragraph at p.113 where it is said

"The tribunal also include the Latin, and specifically legal, term 'res judicatta' (sic), whose inclusion in a Statement of Reasons which purports to make clear to the appellant how the decision was reached, is unhelpful and confusing - particularly since a duty judge will have the opportunity to decide whether the decision should be set aside, therefore the matter can hardly be termed 'res judicata' at this stage in the judicial process."

I do not consider the statement on the issue of 'res judicata' renders the tribunal's decision erroneous in law. While what the chairman attempted to do could not be done for the reasons set out above, the appeal on the merits was before me and I have dealt with it.

7. The freshly constituted tribunal should ascertain clearly which element of the night-time care conditions are in issue before them. They will note the very high test in relation to each of these conditions. They should address them in accordance with the terms set out in the Social Security Contributions & Benefits Act 1992. If they are disposed to limit the period of an award they should if asked to give a statement for their reasons set out the basis upon which they have done so.

(Signed)

D J MAY QC

Judge of the Upper Tribunal

Date: 17 September 2009