DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

 

The decision of the Middlesbrough First-tier Tribunal dated 27 August 2010 under file reference 227/08/01546 involves an error on a point of law and is set aside.

 

The Upper Tribunal is not in a position to re-make the decision under appeal.  It therefore follows that the appellant’s appeal against the Secretary of State’s supersession decision dated 21 August 2008 is remitted to be re-heard (again) by a different First-tier Tribunal, subject to the Directions below.

 

This decision is given under section 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

 

DIRECTIONS

 

The following directions apply to the re-hearing:

 

(1) The re-hearing should be at an oral hearing.

 

(2) The new tribunal should not involve the tribunal judges or any other members who sat on the tribunal that considered this appeal at the hearings on 3 December 2008 or 27 August 2010.

 

(3) If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the regional office of the Tribunals Service within one month of the issue of this decision. 

 

(4) The Secretary of State should prepare a supplementary submission for the new tribunal which deals with the issues identified below at paragraph 35 of the Reasons for the Upper Tribunal’s decision; that further submission should be sent to the HMCTS regional office within one month of the date of issue of this decision.

 

(5) The new tribunal must consider all the evidence afresh and 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 end up reaching the same or a different result to the outcome of the previous tribunal.

 

 

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal. 

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

REASONS FOR DECISION

 

Summary

 

1. This case has already been before the First-tier Tribunal (FTT) in Middlesbrough on two occasions and before the Upper Tribunal on one previous occasion.  Regrettably the Upper Tribunal Judge’s directions on the last occasion were not carried out by the second FTT.  As a result, the second FTT’s decision is flawed in law.  The Secretary of State’s representative in effect now asks me to correct those errors and to re-make a decision with the same end result.  That is not appropriate, so the second FTT’s decision is set aside and there will have to be a third hearing before a different FTT.  The claimant asks for an oral hearing of this appeal before the Upper Tribunal.  I have decided that is not appropriate; it will only delay matters further, and she will have the opportunity for an oral hearing before the new FTT.

 

2. This case is, therefore, a "second time around" appeal at this level.  The original Secretary of State’s decision under appeal was taken as long ago as 21 August 2008 (doc 135), superseding an earlier award of disability living allowance (DLA) made in 1995 and withdrawing entitlement to that benefit from that date in 2008.  The first FTT decision on the appeal, under reference 227/08/01546, dismissing the claimant’s appeal against the supersession decision, was dated 3 December 2008 (at docs 181-184).  That FTT decision was set aside by Judge White in the Upper Tribunal’s decision under file reference CDLA/940/2009 on 13 August 2009 (docs 198-201).  Judge White remitted the case for re-hearing by the FTT with careful and clear directions.  Following an adjourned FTT hearing on 17 May 2010, the second FTT hearing did not take place until a year after Judge White’s decision, and before a different panel, on 27 August 2010 (docs 307-318).  In the result the second FTT’s decision (doc 319) was the same as the first FTT, namely to confirm the Secretary of State’s decision that the claimant was not entitled to either component of DLA with effect from 21 August 2008. 

 

3. That second FTT decision involves an error of law, for the reasons that follow. However, the fact that this (second) appeal to the Upper Tribunal has succeeded should not be taken as any indication of the likely outcome of the further FTT re-hearing.  I stress that I am allowing this appeal to the Upper Tribunal because the second FTT erred in law. The underlying merits of the claimant’s case – and indeed those of the Secretary of State’s case – remain to be determined.  So I simply reiterate what Judge White described as “a cautionary statement for the appellant” (CDLA/940/2009 at [21]).

 

The central issues on this appeal to the Upper Tribunal

 

4. The claimant, who has a diagnosis of fibromyalgia, appeals to the Upper Tribunal with my permission.  Her husband and carer acts as her representative.  The grounds of appeal against the second FTT’s decision are essentially two-fold.  First, he argues that the Department for Work and Pensions (DWP) and the FTT have relied on what he describes as tampered evidence, in the form of a report (dated 11 August 2008) on his wife following a visit by an examining medical practitioner, Dr I.  Second, he contends that the DWP and the FTT were wrong to conclude that the previous decision awarding DLA was based on a mistake or ignorance on the part of the Secretary of State.  In legal terms, his argument is that the Secretary of State had not shown proper grounds for a supersession and that the FTT erred in law in deciding that such grounds had been established.  Before dealing with these points, it is helpful to bear in mind the decision-making history.

 

The chronology of the appellant’s DLA claims, decisions and awards

 

5. On 28 September 1994 the appellant made a new claim for DLA (docs 227-246a).  On 02 December 1994 Dr E visited the claimant and completed an EMP report (docs 250-265).  Dr E reported that she had polyarthritis and identified various care and mobility needs.  On 06 January 1995 an adjudication officer made an award of the higher rate of the mobility component and the middle rate of the care component (for night needs) for the period from 28 September 1994 to 28 March 1996 (docs 278-279).  The length of award was based on medical advice following a paper consideration by another DWP medical advisor (doc 277).

 

6. On 23 October 1995 the appellant made a renewal claim (docs 3-50).  The renewal decision, taken on 16 November 1995, was to make an unlimited award of higher rate mobility and middle rate care (for day needs) with effect from 29 March 1996.

 

7. On 12 January 2000 the claimant applied for a re-assessment on the basis that her condition had deteriorated.  No further information appears to have been provided and on 17 August 2000 a decision was taken to refuse to supersede the existing award from 1995 (docs 280-282a).

 

8. On 23 April 2008 the claimant submitted a completed DLA review form at the request of the Secretary of State under the “Right Payment Programme” (docs 54-93).  The DWP obtained a pro-forma report from the claimant’s GP, dated 28 May 2008, which stated that the claimant had not been seen for fibromyalgia since registering with that practice in October 2005. The GP answered most of the questions as “none recorded” or “not known” (docs 94-98).  This prompted the DWP to commission a second EMP report, from a Dr I, who visited the claimant on 11 August 2008 (docs 106-134).  Dr I in 2008 painted a very different picture to that of Dr E in 1994.  Dr I concluded that the claimant had no care or mobility needs and indeed that “no physical disabilities could be demonstrated today” (doc 118). 

 

9. This EMP report in turn prompted a decision maker to make a supersession decision, on 21 August 2008, to the effect that the claimant was not entitled to either component of DLA as from that date (docs 135-136).  In her reasons for that decision, the decision maker recorded that the operative decision of 16 November 1995 had been “made without medical evidence” and that it had been taken “in ignorance of or mistake as to the material fact that customer’s clinical condition is not so severe to satisfy the conditions of entitlement to DLA” (doc 136).  That supersession decision was later confirmed (doc 140) and the claimant appealed.

 

10. That appeal by the claimant then led to the hearings before the first and second FTTs, between which, of course, fell Judge White’s Upper Tribunal decision allowing the appeal against the decision of the first FTT.  I would add that the official DLA documentation before the first FTT (and so before Judge White) was woefully deficient.  Apart from various medical report letters provided by the claimant, the first FTT only had sight of (i) the 1995 renewal claim and adjudication officer’s decision; and (ii) the 2008 review form, GP report, Dr I’s report and the supersession decision.  The original documentation referred to at paragraph 5 above (and at paragraph 7) only emerged after the first FTT hearing, as a result of the directions of Judge White (at [17]) and those of rulings by FTT judges (see docs 202 and 224).

11. I simply make the obvious point that all this material should have been before the very first FTT.  As the claimant’s representative rightly points out, Mrs Deputy Commissioner Ramsay (as she then was) has stated that it is “for the Secretary of State in the first place to identify the ground on which it is asserted that supersession is made out, and to list the evidence which in his view supports that conclusion” (CDLA/3301/2007 at [8(ii)]).

 

Ground of appeal 1: “the tampered evidence”

 

The parties’ submissions

12. The claimant’s case, in part, is that the report of Dr I, the second EMP, could not be relied upon, not least as his visit was hurried.  The claimant and her husband say that he arrived at 12.30 on 11 August 2008, said that he had another appointment at 1 pm and stayed for about 20 minutes. They argue that the EMP’s departure time had been deliberately scribbled over to conceal the limited time that the doctor was there.  When giving permission to appeal, I noted as follows:

 

‘First it is said that the Department's 2008 EMP report (and asserted to be its primary evidence: docs 104-134) has been "doctored" to conceal the examining doctor's departure time (see doc 132).  I am not sure there is much in this point, at least insofar as it is an allegation of tampering with the evidence - it seems fairly clear that the arrival time of 12.30 was uncontested and doc 132, though scribbled on, seems to me to indicate the examination was completed at 12.45 and a further 36 minutes were spent in writing up.  I note that the claimant's original grounds of appeal to the Upper Tribunal following the first appeal complained about a 20 minute EMP assessment.  However, that said, the tribunal plainly thought that the EMP examination took not ¼ hour but 1¼ hours (see doc 322, paragraph 6).  The basis for this finding is unclear from a quick perusal of the file, as it is hard to see how doc 132 could have been read to be "13.45".  The length of the examination was clearly a factor which weighed heavily with the tribunal - if they made a mistake on that crucial fact, it is arguably so material that it amounts to an error of law, if indeed there was no evidence to support their conclusion it was such a lengthy and detailed examination.’

 

13. Mr R J Atkinson, who acts for the Secretary of State in these proceedings, does not support the appeal.  He argues that Dr I’s 2008 EMP report is detailed and thorough and it matters not whether the EMP stayed for 15 minutes or 1¼ hours, citing the well known observation of Mr Commissioner (now Judge) Jacobs in CIB/908/2003 (at [7]) to the effect that the issue is whether or not the interview and examination was properly conducted, not the length of time it took.  However, the claimant’s representative refers me in this context to the cautionary comments of Mrs Commissioner Parker in CSIB/69/2003 (at [19]-[23]).

 

The Upper Tribunal’s analysis

14. I acknowledge the force of Mr Atkinson’s argument that the second FTT, as part of its reasoning for adopting Dr I’s report, relied on what it found to be the consistency between that report and the claimant’s medical notes and correspondence on file.  I also accept that Dr I’s report appears to be detailed (whether it is thorough or not is not for me to say), although some of the detail appears to be of questionable relevance to DLA entitlement (e.g. “Nose stud in her L nostril. Has tattoos” recorded under “clinical findings: general clinical appearance”, doc 113).

 

15. The fact remains, however, that the FTT also relied on the primary finding that the interview and examination had taken 1¼ hours as support for its conclusion that there had been a “full” examination.  There are two difficulties with the tribunal’s approach.  First, it is difficult to identify the evidential basis for the tribunal’s conclusion.  The EMP report plainly records that the visit commenced at 12.30 and that the writing up, after the visit had concluded, took 36 minutes.  The time that the examination ended is recorded in what is best described in print as ‘12.45’, with what appears to be a figure 12 under the scribble.  It is hard to read it as a ‘13’.  Second, the duration and adequacy of Dr I’s report were both challenged by the claimant.  The grounds of appeal against the first FTT decision had described the visit as a “20 minute examination by a DWP GP which was cursory at best” (doc 193). The same point was made at an adjourned tribunal hearing on 17 May 2010 (doc 221) and by the claimant’s husband in his written submission to the second FTT (doc 304).  In those circumstances the second tribunal should have given brief reasons explaining why it had come to the conclusion that the report was the result of a lengthy 1¼ hour visit.  Taking those two features together, I regard this as a material error of law in the FTT’s approach.

 

16. For the avoidance of doubt, I am not making any finding that the EMP report had been “tampered with” in any way. I simply do not know.  The departure time had clearly been partly scribbled over, but that might have simply been an error by an EMP working under time pressures rather than some sinister attempt at concealment.  What really matters is that the next tribunal will have to form its own judgment of the overall quality, consistency and reliability of Dr I’s report in the context of all the other evidence and the supersession issue.

 

Ground of appeal 2: the supersession point

 

The background

17. The history of the appellant’s DLA claim is set out above.  In the “first time around” appeal of CDLA/940/2009, Judge White concluded that the first FTT had erred in law because it had treated the case in effect as a fresh claim, and had failed to explain that benefit had been terminated on a review initiated by the Secretary of State ([12]).  Judge White continued (at [14]):

 

“The position is somewhat different where the earlier award is an open-ended award, as in this case. Where, in such cases, the Secretary of State supersedes an earlier award to remove the benefit, the onus of showing that the person receiving the benefit is no longer entitled to it rests on the Secretary of State. This is because the Secretary of State must show some ground for supersession and that its conditions are met. It may be even more important in such cases that the reasons for the termination of a long-standing benefit are clearly explained to an appellant. This requires both identification of the power of supersession exercised by the Secretary or State, and whether the requirements for supersession are met. This is a matter which was completely overlooked by the tribunal.”

 

18. In his directions to the new tribunal (the second FTT), Judge White spelt out clearly what was required (at [16]):

 

“The new tribunal must be very clear that it is dealing here with a situation in which the Secretary of State has exercised a power of supersession to terminate a long-standing open-ended award of disability living allowance. It is open to the Secretary of State to use the power of supersession in cases where there is clear evidence that the beneficiary no longer meets the conditions of entitlement for the benefit. But it is incumbent on a tribunal hearing an appeal against such a decision to determine with some precision the power which the Secretary of State is exercising and whether the conditions for its exercise are met.”

 

19. The second FTT concluded “that the award made in 1996 had been made in ignorance of a material fact or mistaken as to material fact relating to the Appellant’s functioning ability, and raised grounds for supersession” (at paragraph 3 of the statement of reasons).  I refer further to the FTT’s reasoning below.

 

The parties’ submissions

 

20. The claimant’s case is simple.  Put shortly, she argues that the original and renewal awards, both made in 1995, were correctly made on the medical and other evidence at the time, that the onus was on the Secretary of State to show that those decisions were wrong and that the Secretary of State had failed to discharge that burden.  In short, there were no grounds for supersession.

 

21. Mr Atkinson has provided a detailed submission to the Upper Tribunal.  As noted above, he does not support the appeal.  However, his argument on the supersession issue is a little hard to follow.  He accepts that the decision maker’s supersession decision of 21 August 2008 was flawed for the reasons I identified when giving permission to appeal.  He also accepts that the second FTT failed to follow Judge White’s directions for the rehearing.  However, Mr Atkinson then seeks to argue that these are merely procedural flaws, which can be corrected by the Upper Tribunal on appeal (see the decision of the Tribunal of three Social Security Commissioners in R(IB) 2/04).  He acknowledges that the decision maker’s reliance in 2008 on the 1995 decision being made by mistake or in ignorance as regards a material fact was incorrect.  The proper ground of supersession, he contends, was that the claimant’s condition, or management of her condition, had improved over time, such that she qualified for DLA in 1995 but no longer qualified in 2008.

 

The Upper Tribunal’s analysis

 

22. In summary, I agree with both representatives that the second FTT’s decision discloses an error of law in terms of its treatment of the supersession issue.  As a result I set aside the tribunal’s decision.  However, I disagree with Mr Atkinson’s submission that, in the circumstances of this case it is appropriate for the Upper Tribunal to correct those deficiencies.  In essence Mr Atkinson is asking me to find that the FTT’s decision involves an error of law but that I can re-make or substitute my own decision with the same end result, namely that the underlying appeal from the supersession decision is dismissed.  I reject that submission for the following two reasons.

 

(i) The natural justice point and the shifting sands of supersession

23. First, there is a natural justice point.  The Secretary of State’s case at the time of the 2008 supersession decision was that the November 1995 renewal decision had been based on a mistake, or ignorance, of material fact (see doc 136).  In more technical terms, the Secretary of State was relying on regulation 6(2)(b)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991).  In part that conclusion was based on an assumption that the November 1995 decision had been made without medical evidence.  Mr Atkinson rightly concedes that that assumption may have been mistaken – the November 1995 adjudication officer may well have been aware of the medical evidence underpinning the initial awarding decision in January 1995.

24. The DWP submission to the first FTT singularly failed to address the grounds for supersession, which may well go some way to explaining why that tribunal approached the case in the erroneous way it did.  The main DWP submission to the second FTT did at least mention the ground for supersession relied upon, contending that the claimant “would have been able then in 1995 as she can in 2008 walk in a normal manner and attend to her personal care needs independently” (doc 209a). This was plainly a reference to the ground for supersession under regulation 6(2)(b)(i) of the 1999 Regulations.  On the other hand, a supplementary submission drew attention to the differences in the clinical findings between the two EMP reports (doc 226), hinting at but not quite articulating a ground of supersession based on a change in circumstances (i.e. under regulation 6(2)(a)(i) of the 1999 Regulations). 

 

25. Be that as it may, at the adjourned FTT hearing on 17 05 2010 the DWP presenting officer was recorded as stating that the original decision had been made on the basis of the “claim pack alone initially” [Note by Upper Tribunal: this does not seem to be an accurate account of the 1995 decisions], but that the DWP “now have medical evidence from 2008 from EMP which [we] accept is in dispute – but [we] submit argument that ignorance of material fact is the right way forward” (doc 219).  That FTT very sensibly adjourned for the DWP to produce further evidence from its files and for the claimant’s representative to send in a submission addressing (i) the supersession question: and (ii) those issues of fact and opinion which were challenged (doc 224).  The claimant’s husband duly did as directed, his arguments being that the 1995 decisions were correctly made on the medical evidence at the time (docs 302-303).

 

26. In her initial letter of appeal against the second FTT’s decision, the appellant wrote that she was rather confused because “when the Tribunal was adjourned on 17/05/2010, I was led to believe that I would be given opportunity to argue the supersession at the next hearing.  At the hearing on 27/08/2010 we were told that they would first discuss the medical side and then we would be discussing the supersession. This did not happen as after the Tribunal heard the medical side they then closed the hearing” (doc 320).  This account, I have to say, is supported by the tribunal judge’s detailed record of proceedings.  That shows that the second FTT hearing lasted 1 hour 40 minutes; the 10-page note records plenty of evidence about the appellant’s condition and claimed care and mobility needs, but not a single mention of the grounds for a supersession.

 

27. Mr Atkinson now argues on behalf of the Secretary of State that the proper ground for supersession is in fact regulation 6(2)(a)(i) (change of circumstances) and not 6(2)(b)(i) (mistake or ignorance of material fact).  As can be seen from the account above, the claimant has not yet had the opportunity to address that argument.  It would, in my view, be quite wrong to correct any deficiencies and re-make the second FTT’s decision on a quite different basis. In this context I bear in mind the observations of Mrs Commissioner Parker in CSDLA/251/2007 (at [12]):

 

‘If the circumstances surrounding the original award are unknown and a claimant’s current non-entitlement is plain, then it may be a legitimate inference, on a balance of probabilities, that either there was an initial error of fact or a subsequent change of circumstances or that a DM [decision maker] must have erred in law in making the original award; so that a ground of supersession is justified and it does not matter too much which.  But such is not the present situation.  The facts underpinning the original award are known and it is difficult to see of what primary fact the DM was then ignorant or mistaken.  Nor does there appear to be error of law.  The only way error of law in exercising judgement in the application of a statutory test could arise is where (per Lord Fraser in G v G [1985] 2 All ER 225 at page 229) a tribunal came to a conclusion that “exceeded the generous ambit with which a reasonable disagreement is possible”.  In no respect could the DM’s original decision be regarded as perverse on that basis.’ 

 

28. I simply note that in the present case the circumstances of the original decision to award DLA in January 1995 are not unknown.  That decision was based in part on Dr E’s EMP report.  It may be that, given Dr E’s findings about mobility, the award of higher rate mobility was on the generous side, although the same might not necessarily be said about the award of the middle rate care component.  However, Dr E clearly accepted there were some care and mobility needs and the adjudication officer also had other evidence to consider at the time, including the claim pack.  So the decision may have been a shade generous – I note that there is on file a tribunal decision from an incapacity benefit appeal in 1997 (doc 147), some two years later, which concluded that the claimant’s mobility was limited to 200 metres – but it is open to question as to whether it can truly be said to have been based on a mistake or ignorance of any material fact, or alternatively to have been in any way perverse.

 

29. Finally, I refer to Mrs Commissioner Parker’s conclusion in CSDLA/251/2007 (at [17]):

 

“Once a person is given an award, and it is not suggested that the appellant has been untruthful at any stage, then it is right that he should have the security of that award unless and until the Secretary of State can make out a ground for supersession.  Just because a decision maker considers that a claimant would not satisfy the criteria for entitlement were a new claim required and fresh consideration given to that claim, is insufficient, unless nothing is known about the original award and current non-entitlement is so apparent that a ground of supersession may circumstantially be thus established.”

 

(ii) The FTT’s shaky foundations on the shifting sands of supersession

30. The second reason why I cannot adopt the approach urged by Mr Atkinson is that the second FTT’s decision does not provide an adequate foundation for such a re-made decision.  The second FTT dealt with the supersession point exclusively as follows, at paragraph 3 of the statement of reasons (I have inserted Roman numerals for the purposes of reference):

 

“(i) The tribunal found that there were grounds for supersession.  (ii) The Appellant had been awarded DLA in 1994 when there was evidence from an EMP, Dr E, estimating that she could walk 100 yards, slowly, before having to rest and could then continue to walk.  Dr E had also assessed that she had some care needs.  There was a GP report confirming the medical condition of polyarthralgia but giving no opinion on functioning.  (iii) An award of higher rate mobility and middle rate care (night needs) was then made.  (iv) On the renewal application in 1996 no medical evidence was obtained. (v) In 2008 the Secretary of State was entitled to seek up to date information of the Appellant’s condition and she completed an enquiry form in which she stated that he disabling condition was fibromyalgia for which she was taking ibrufen, paracetamol and codeine. (vi) However, a report from her GP, Dr B, dated 28.05.08, indicated that since registering with that practice in 2005 she had been seen for only minor problems and not for fibromyalgia. (vii) She was then examined by an EMP, Dr I, who reported that there was no physical evidence of her being unable to walk and assessed that she had no care needs.  (viii) The tribunal found that the award made in 1996 had been made in ignorance of a material fact or mistaken as to material fact relating to the Appellant’s functioning ability, and raised grounds for supersession.”

 

31. I would observe as follows.  First, findings (i) and (viii) simply state the FTT’s conclusion that there were grounds for supersession on the basis of regulation 6(2)(b)(i).  Second, finding (ii) is accurate as far as it goes, although to be precise the claimant was awarded DLA in January 1995 with effect from the date of claim in September 1994.  Third, finding (iii) is correct.  Fourth, finding (iv) is not strictly accurate; the renewal application was in 1995, not 1996 (although little may turn on that slip) and it might have been better to have said that “it appeared that no further medical evidence was obtained at the time”.  I would just add that, given the history of partial disclosure of relevant documentation in this case, there might have been a further GP report obtained on the renewal decision, although the evidence code for that decision would suggest not. Fifth, finding (v) is justified on the evidence.  Sixth, conclusion (vi) is also justified on the evidence, although it does not address the claimant’s argument that there was no point in seeing the new GP about her condition, given her past medical history.  Finally, finding (vii) is a somewhat compressed summary of Dr I’s EMP report (and, of course, the claimant’s case is not that she is “unable to walk” but rather that she is, according to the statutory test, “virtually unable to walk”).

 

32. Overall, however, the second FTT’s account of the supersession issue does not go far enough to support the tribunal’s conclusion.  In particular, paragraph 3 fails to provide a sound evidential basis for reaching the conclusion that the Secretary of State had discharged the burden of proof.  If the basis for the supersession was mistake or ignorance of a material fact, it is unclear what form that mistake or ignorance took as regards the claimant’s care and mobility needs.  The 1995 renewal decision can hardly be assumed to have been taken on the claim form alone, without sight of the first EMP report, given that both decisions were taken in the same year.  In particular, in what way was Dr E’s report such that the Secretary of State was labouring under some mistake or ignorance of a material fact in 1995?  A difference of opinion now about what might have been the appropriate decision to have made on the evidence available in 1995 does not necessarily mean there was any mistake or ignorance of a material fact.  The second FTT appear to have ignored the findings of Dr E’s report at the time of the original claim and to have relied upon the 2008 GP and EMP reports as the basis for a conclusion that the 1995 decision(s) must have been mistaken, but such an approach is unsustainable given the intervening passage of time.  Equally, the second FTT has not laid a sufficient fact-finding basis for an alternative conclusion that – as the Secretary of State’s representative now seeks to argue – the claimant might have been entitled to DLA in 1995 but her condition had improved such that she did not so qualify by 2008.  Such a contention might also raise issues about the effective date of any supersession, although I note that the reasons for the Secretary of State’s decision under appeal in this case acknowledged that “Award changed from 21/8/08, not expected to know not entitled to DLA” (doc 136).  There is, therefore, an insufficient FTT foundation for the Upper Tribunal to re-make the decision in the manner advocated by Mr Atkinson for the Secretary of State.

 

Conclusion to analysis

33. It follows that the second ground of appeal, relating to the supersession point also succeeds.  

 

 

 

Conclusion

 

34. I therefore allow the appeal for the reasons set out above.  I also set aside the decision of the tribunal (Tribunals Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for rehearing by a new tribunal in Middlesbrough subject to the directions listed above (section 12(2)(b)(i)).

 

35. In preparation for the re-hearing, the Secretary of State should prepare a supplementary submission for the new tribunal which deals fully with the supersession issue.  In particular, the Secretary of State should make clear the ground(s) for supersession which is being relied on (within regulation 6 of the 1999 Regulations) and also identify the evidence on file which is said to support the relevant ground(s) for supersession.  That further submission should be sent to the HMCTS regional office within one month of the date of issue of this decision.

 

36. The sorry saga of this appeal illustrates once again two particular lessons which have been identified in previous decisions of the Upper Tribunal and the former Social security Commissioners.  First, FTTs must be alert to the need to ensure that, when dealing with cases involving a supersession decision withdrawing entitlement to DLA, they have before them all the relevant documentation held by the DWP. Second, FTTs need to scrutinise carefully the precise grounds for supersession relied on by the Secretary of State and to identify the material evidence, in just the same way as they would if it is the claimant who is applying for a supersession.  In that context, the parties, of course, are under an explicit duty to help the FTT further the overriding objective of dealing with cases fairly and justly, and to co-operate with the tribunal generally (rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685)).

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 06 October 2011 Judge of the Upper Tribunal