THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The appeal is allowed.

Permission to appeal was given by an Upper Tribunal Judge.  The decision of the First-tier Tribunal (the tribunal) sitting in Brighton on 14 December 2010 is wrong in law.  I set aside the tribunal’s decision and return the appeal to a new tribunal for a wholly fresh hearing. the Upper Tribunal is not in a position to remake the decision under appeal as further findings of fact are required.  The appeal is supported by the Secretary of State and, after careful consideration of the case papers, I agree with that support; for that reason, and because the appellant had a diagnosis of a serious medical condition at the relevant date, and because by the time this appeal is reheard it will, in any event, be almost two years after the date (20 April 2010) of the decision under appeal to the tribunal, my reasons will be brief.  The issues are, in the main, sufficiently addressed in the submissions of the parties and in the permission to appeal given by the Upper Tribunal Judge; the new tribunal is directed to read those carefully. 

REASONS  FOR  DECISION

Breach of the rules of natural justice

1.               There was information before the tribunal that, at the date of the relevant decision, (20 April 2010) the claimant had a lymphoma.  The medical member cast doubt on that medical evidence.  It is elementary that in such circumstances, fairness demanded that the claimant be offered an adjournment in order to gather supporting evidence; the tribunal erred in law by not giving her that chance.

Taking circumstances down to the date of the decision under appeal only

2.               The tribunal plainly relied, in part, on the point that “[the claimant] now has been given the all clear (called ‘radiological remission’ in the papers)”.  However the evidence before it was that this was not until October 2010; it is legitimate to take account of circumstances after the date of the relevant decision insofar as they cast light on what were  the circumstances at the relevant date, but that is not the purpose for which the tribunal used the information.  Its approach was erroneous in law.

Consideration of the Employment and Support Allowance Regulations 2008, regulation 29(2)(b)

3. The question of  “substantial risk” is an objective one; therefore, on that aspect, with respect to physical health, the claimant’s subjective views and personal belief system are unlikely to be pertinent.  Nevertheless, insofar as a claimant argues that a system of alternative treatment is, or is not, medically efficacious, the tribunal must give her a chance to consider  its own differing appraisal, if it holds such. However, whether a  finding of limited

capability to work would post substantial risk to her mental as distinct from physical health may raise different questions: while the determination of the point is still an objective one, what are the subjective beliefs of a claimant must form part of the background to the question whether, looked at objectively, she might suffer a significant deterioration in mental health, faced with the thought that, in work, she could not follow out her preferred therapeutic regime.  The tribunal erred in concentrating only on a reaction mentally to the distressing news of a cancer diagnosis or on whether the state of her cancer was at the relevant date physically harmful.  It ought also to have applied an objective test in consideration of the question whether, in all her circumstances, the prospect of having to give up her daily time-consuming regime which she believed was the right and only way to combat her cancer, could constitute the necessary substantial risk. 

Summary

4. The appeal is therefore remitted to a new tribunal to begin again.  It is emphasised that it will be complete rehearing on the basis of the evidence and argument available to the new tribunal, and in accordance with my guidance above, and the determination of the claimant’s case on the merit is entirely for them.  Although there has been success in this appeal limited to issues of law the decision on the facts of the case remains open.

(Signed)

L T  PARKER

Judge of the Upper Tribunal

Date: 20 January 2012