Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/1938/2011

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 1 April 2011 is set aside and the case is remitted to a differently-constituted panel for determination.

The Secretary of State is directed to consider whether to revise his decision dated 16 November 2009 in the light of the recent decision of the First-tier Tribunal in February 2012 on a new claim made by the claimant in April 2011 and, if he does not revise it, to send a further submission to the First-tier Tribunal, giving the precise date from which the new award was effective and providing the First-tier Tribunal with the new evidence obtained on that claim. 

REASONS FOR DECISION

1. This is an appeal, brought by the claimant with my permission and the support of the Secretary of State, against a decision of the First-tier Tribunal, whereby it dismissed her appeal against a decision of the Secretary of State disallowing a renewal claim for disability living allowance with effect from 7 January 2010.  Previously, the claimant had been in receipt of the higher rate of the mobility component and the middle rate for the care component. 

2. I held an oral hearing of the application for permission to appeal and granted permission only on a procedural ground, which I explained as follows –

“3. ….  The claimant’s case before the First-tier Tribunal was listed for hearing in Merthyr Tydfil at 9.30 am on 1 April 2011.  At 9.15 am, she telephoned the First-tier Tribunal’s new support centre in Loughborough and said that her representative had not turned up to pick her up for the hearing.  She said she could not make it in time for the hearing and asked for a postponement so that she could attend.  She told me that she was informed that there was no question of a postponement and that the best she could hope for was an adjournment.  She understood a postponement to be a mere delay in hearing the case but understood that the support centre would not be able to ring her back to say that any such delay had been agreed.  However, the support centre said that they would let the First-tier Tribunal know of her problem.

4. The First-tier Tribunal refused to adjourn the proceedings and gave three reasons for refusing to do so.  The first two reasons it gave – that the claimant had had proper notice of the hearing and that there was no Article 6 right to be represented – are perfectly good points but they do not deal with the grounds upon which the claimant actually sought an adjournment in this case.  The third was that the claimant was able to drive a motor vehicle, that she used a vehicle for taking her children to and from school and that she could have driven to the hearing in 25 minutes or, alternatively, used other means of transport, which would have enabled her to attend the hearing if she had just asked for the start of the hearing to be delayed.  That was also a perfectly good reason for refusing an adjournment, if it was factually accurate and if the claimant had had an opportunity to ask for the hearing to be delayed. 

5. However, in this case, it appears that those conditions may well not have been satisfied.  First, the car that the First-tier Tribunal understood the claimant to have had appears to have been available to her under the Motability Scheme, so that when her renewal claim for the mobility component failed, she lost the car (see doc 237).  She explained to me that her daughter had since then purchased a car that they shared, but it was not available to her on that day because her daughter had taken it to work.  She said that a bus would have taken about an hour and that the service was hourly, or possibly half-hourly, and that her mother had offered to pay for a taxi, which she thought would have cost about £25 but that she would in any event have been late for the hearing by the time it was clear that her representative was not intending to appear.  Secondly, she had understood from the support centre that the First-tier Tribunal would not delay the hearing (which may have been a misunderstanding on her part) but that in any event the support centre would not be able to confirm that a delay had been agreed (which appears to have been an accurate understanding).  It was arguably unreasonable to expect this claimant, who was claiming to be sufficiently disabled to qualify for the higher rate of the mobility component, to embark on a journey to Merthyr Tydfil by taxi, knowing that she would be late and without any indication that the First-tier Tribunal would be, or even might be, prepared to hear her case if she was late.  On the claimant’s account, she was not advised by the support centre that she should attend the hearing even though she would be late.  There is nothing in the support centre’s own record of the conversation (doc 269, provided to me by the clerk at the hearing before me who had access to the relevant computer system) to contradict that account.

6. The claimant also told me that [her representative], who she says let her down, was an acquaintance who had offered to help because she had a law degree.  The claimant said that she had been unable to contact her on the day of the hearing and that [the representative] subsequently said that she had got drunk the night before and overslept.  She has not had further contact with [the representative], save that [the representative] had returned the papers to her.  I observe that the claimant does not have a history of non-attendance at hearings and has previously attended two or three hearings.

7. In all these circumstances, it is arguable that there has been a breach of the rules of natural justice in this case and that the tribunal’s reasons for refusing to adjourn the proceedings, in a decision necessarily made without the claimant having had an opportunity to comment on the factors the tribunal had in mind, were flawed.” 

3. The Secretary of State agrees with those observations and also refers to WT v Secretary of State for Work and Pensions (DLA) [2010] UKUT 93 (AAC).  He also points out that the First-tier Tribunal in this case considered it to be “in the interests of justice to proceed with the hearing” in the claimant’s absence (see rule 31(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685)) “given the appeal relates to a decision made in 2009”, which he suggests was the wrong approach.  I agree.  I fail to see what relevance the age of a case has in itself.  If there had previously been delay due to fault on the claimant’s part, that is one thing, but it is irrational to act less fairly merely because a case is old.

4. I am satisfied that there was a breach of the rules of natural justice in this case and that the reasoning of the First-tier Tribunal was flawed.  I appreciate that it is sometimes difficult for a tribunal to know how to proceed in this sort of case but, if it does take a robust attitude, it is incumbent on it to reconsider its position in the event of a challenge which throws a different light on the position.  There were grounds for setting aside the decision in this case.  If, as was the case here, a different judge deals with any post-hearing application, he or she needs to be sensitive to the possibility that the panel hearing the substantive appeal may not have been aware of all the facts.  Using a central call centre which cannot consult the clerk at a hearing venue before advising a claimant is obviously likely to result in communication problems.  I am not sure how reasonable it is to expect a disabled claimant to set off speculatively on a journey that may or not prove fruitless and in respect of which, if she uses a taxi to increase the chances of the journey not being fruitless, she may be uncertain as to whether she will be able to recover the fare.  Claimants who live in rural areas may have particularly difficult choices to make if travel arrangements break down.

5. I therefore set aside the First-tier Tribunal’s decision and remit the case for rehearing.  However, when she appealed to the Upper Tribunal, the claimant was advised that she could make a new claim while the appeal was pending.  She tells me in a recent letter that she did so and, on appeal, was awarded the higher rate of the mobility component and the lowest rate of the care component from April 2011.  The present case is therefore now concerned with entitlement during a period of only about 15 months.  In the light of the recent decision of the First-tier Tribunal, the Secretary of State should consider whether to review the decision under appeal.  If he revises the decision in the claimant’s favour, her appeal will lapse.  If he does not, he should provide the First-tier tribunal with any new evidence obtained in connection with the new claim.  Although the First-tier Tribunal will be obliged to consider the claimant’s condition as it was in November 2009, it is possible that some of the more recent evidence will throw some light on that.

Mark Rowland

1 June 2012