Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CDLA/705/2011

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

A This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

The decision of the tribunal heard on under reference is SET ASIDE because its making involved an error on a point of law.

The appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing.

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

The decision of the xxx  tribunal dated xxx involves an error on a point of law.  The tribunal’s decision is SET ASIDE and RE-MADE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

C  This decision of the First-tier Judge IS NOT SET ASIDE. Although the decision of the First-tier Tribunal involved the making of an error of law,  the  Upper Tribunal exercises its power NOT to remake the decision, under section 12(2)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

D  The appeal is dismissed.  The decision of the First-tier Tribunal did not involve the making of an error of law.

E  ORAL HEARING REFUSED  ORAL HEARING REFUSED I am able allow the appeal on the basis of the submissions of the parties/on the grounds identified in granting permission to appeal.  It is therefore unnecessary to hold an oral hearing for that purpose. 

The Upper Tribunal’s task is to decide whether the First-tier Tribunal made errors of law sufficiently material to warrant setting aside the First-tier Tribunal’s decision.  It is up to the First-tier Tribunal, on the other hand, to decide the extent of the disabilities from which the appellant suffers and whether she satisfies the conditions of entitlement for DLA.  The appellant will have the opportunity to explain her health problems and disabilities she perceives to arise from them to the First-tier Tribunal at a rehearing. 

The appeal must now go back to a First-tier Tribunal which will hold a complete rehearing of the appeal.  The appellant will be able to explain his /her problems in full to the new tribunal.  S/ he must not take her success in this appeal to the Upper Tribunal as any indication that / s/  he will succeed in her appeal before the First-tier Tribunal.  Indeed, it is possible that, following the rehearing, the First-tier Tribunal will decide that the appellant is not entitled to . 

F  Anonymity I direct that there is to be no publication of any matter likely to lead members of the public directly or indirectly to identify any person who has been involved in the circumstances giving rise to this appeal, pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).

REASONS FOR DECISION

This appeal is brought with my permission. It is an appeal against the First-tier Tribunal’s decision that the respondent (the Secretary of State for Work and Pensions) was right to supersede, and thereby remove, the appellant’s existing entitlement to DLA.  She had been in receipt of the lowest rate of the care component of DLA by an award running indefinitely from 9/3/08.  The award letter is at p50 and appears to say that she was entitled to the lowest rate of the care component on the basis that she could not prepare a cooked main meal for herself and also (presumably in the alternative) needed help with her personal care (attention in connection with her bodily functions) for a significant portion of the day.  Looking at the computer printout at p143, however, it is apparent that the award was of the lowest rate of the care component on made only on the basis that she could not prepare a cooked meal for herself (‘the main meal test’):  the code C03 reflects this.  She had no award of the mobility component.  Before 2008, the appellant received DLA under an award dated 9/3/05. The printout at p143 shows this award as made on the basis of code C43 – lowest rate of the care component (main meal test) for a fixed period.  We do know from p142 that the appellant went to a tribunal about this award, but neither she nor her representative has suggested that the tribunal awarded more than shown by this code. 

The supersession process began on 11/11/09 when the appellant asked the Secretary of State to look at her award again because she felt her mobility and care problems had become worse.  She was seeking a better rate of the care component and an award of the mobility component.  When the medical evidence came in, however, the Secretary of State decided that, if anything, the appellant’s needs were less rather than more.  He superseded the existing award off his own bat on 28/1/10.  The reason the Secretary of State gave for taking her award away was that

The Secretary of State’s decision make had

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 15 December 2011