IN THE UPPER TRIBUNAL Case No CIB/2495/2009

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision: The appeal is allowed. The decision of the First-tier Tribunal sitting at Swansea on 24 July 2009 under reference 204/08/02967 involved the making of an error on a point of law and 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 in paragraph 4 of the Reasons.

REASONS FOR DECISION

1.               The Secretary of State’s representative has expressed the view that the decision of the tribunal involved the making of an error on a point of law and has agreed to a rehearing. The claimant, by making this appeal, has done the same. The parties have agreed to a decision without reasons. That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail.

2.               I have set the tribunal’s decision aside for the reason(s) identified when granting permission to appeal when I said:

“Did the tribunal err in concluding, without evidence about the DLA award, that it “was not influenced with (sic) the fact that [the claimant] was apparently in receipt of the higher rate of the mobility component of Disability Living Allowance? Had it called for the papers, it would have established that the award was made in 2004 following an EMP examination.

Did the tribunal overlook material evidence as to the course taken by [the claimant’]s back complaint and its treatment? When Dr Sivakumaran advised in June 2006 that the functional incapacity would be expected to improve significantly in 18 months (document 40), it appears likely that he was basing that on the statement in [the claimant’s] Form IB50 at 23 that he was waiting for an operation on his back. In the event, it appears (44) that the operation never took place because of the risks perceived to be involved. In that event, what the position had been in 2004 might well still be relevant evidence, providing an alternative view to the evidence of Dr Birliga, so that the tribunal would have to decide on rational grounds (and less dismissively than it in fact did) what weight to give to it.”

The Secretary of State, in supporting the appeal, has drawn my attention to the decision in CSIB/388/06 where a tribunal decision was held to be in error of law for similar reasons and with which I respectfully agree.

3.               I do not need to deal with any other error on a point of law that the tribunal may have made. Any that were made will be subsumed by the rehearing.

4.               I direct that the tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration. While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh. The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against (18 August 2008) – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.

5.               The claimant in his latest submission in the present appeal has made comments about pain and medication. If these can be related to the date of 18 August 2008, they are points which the claimant may make to the First-tier Tribunal on the re-hearing.

6.               While it is not an appropriate matter for me to make the subject of a Direction, the claimant is encouraged to attend the re-hearing, as tribunals frequently find it helpful to hear direct from a claimant as to the limitations caused by their medical condition(s).

7.               The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

(signed)

C.G.Ward

Judge of the Upper Tribunal

24 March 2010