IN THE UPPER TRIBUNAL Case No  CE/311/2011

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Scarborough on 9 September 2010 under reference 010/10/00670 involved the making of an error 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. Both the claimant and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing.  That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail.  I need only deal with the reason why I am setting aside the tribunal’s decision.

2. I have set the tribunal’s decision aside, because:

(a) in this case there was evidence that the claimant suffered from depression, which had been only recently diagnosed at the time of her examination by the Approved Disability Analyst (“ADA”) in May 2010.  There was evidence of (unspecified) recent weight loss and that the claimant, who at that time weighed approximately six stone, had a BMI (16Kg/sq m) which was very low on accepted indicators.  The tribunal, which awarded 0 points under the physical and mental descriptors, was in my view obliged, in the exercise of its inquisitorial jurisdiction, to follow up the weight loss and low BMI, in order to determine whether they were a symptom of the as yet relatively untreated depression and to consider their possible relevance to the mental health descriptors.  If it could not do so, the claimant having elected a paper hearing, then in my view the tribunal was required to adjourn.

(b) If, contrary to my view at (a), it did so, then its duty to give reasons obliged it to say what it made of this evidence.

(c) The decision appealed against was taken on 2 June 2010.  There was evidence before the tribunal in the form of a letter dated 8 August 2010, that by the latter date the claimant’s weight was down to five stone – i.e. it was said that she had lost one-sixth of her already low body weight in a period of 11 weeks since the examination by the ADA.  The tribunal appears not to have considered the possibility that this could provide evidence of the rate of weight loss as at the date of decision and should have done so. The rate of weight loss was at least capable of providing evidence as to the claimant’s mental state at the date of decision, if it was that which was causing her to neglect her nutrition. The tribunal also erred in relation to the relevance of treatment received by the claimant after the date of decision.  By 25 June 2010 (23 days after the date of decision), she was receiving home visits and daily appointments from the mental health crisis team.  There was no indication that this was prompted by an exacerbation of sudden onset post-decision and it was therefore capable of providing evidence as to how the claimant’s mental health was at the date of decision.  It appears that in relation to these issues the tribunal misdirected itself as to section 12(8)(b) of the Social Security Act 1998, as evidence coming into existence after the date of decision and evidence of events occurring after the date of decision may be considered if relevant to the circumstances obtaining at the date of decision: see R(DLA)2/01 and R(DLA)3/01. 

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.  The tribunal should consider whether the appeal falls to be considered by reference to schedule 3 as well as schedule 2 of the Employment and Support Allowance Regulations 2008.  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. 

5. 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.  The claimant has latterly had valuable support from the Citizens Advice Bureau: they will be able to advise her as to the desirability of attending the renewed hearing and, if circumstances warrant it, to consider the possibility of applying for a domiciliary hearing.

CG Ward

Judge of the Upper Tribunal

21 June 2011