Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/972/2012

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 10 October 2011 is set aside and the case is remitted to a differently-constituted panel of the First-tier tribunal for redetermination.

REASONS FOR DECISION

1. This appeal by the claimant is brought with the permission of the First-tier Tribunal and is supported by the Secretary of State, although neither the judge of the First-tier Tribunal who granted permission nor the Secretary of State has given much in the way of reasons.

2. The judge, who was not the judge who presided at the hearing on 10 October 2011, said this –

“The Appellant has applied for permission to appeal to the upper Tribunal against the decision of the First-tier Tribunal issued on 10.10.11.

It is not appropriate to review the decision because the Appellant has claimed that the First-tier Tribunal has erred in a wide variety of ways, supporting her arguments with copious references to decisions of the Commissioners and the Upper Tribunal.  Should the decision of 10.10.11 be set aside and a rehearing directed (and the Appellant should not assume from the grant of permission that this is what will happen), it will be appropriate for the Upper Tribunal to issue guidance as to where the First-tier Tribunal has erred as well as where it has not, so that the appeal can be disposed of on a rehearing without repetition of error.

Permission to appeal is granted.”

3. It is true that the claimant referred to 25 Commissioners’ decisions in her four-page application but that is not in itself a reason for refusing to review a decision or for granting permission to appeal.  The mere fact that there has been copious citation of authority does not mean that any of the points made is a good one or that, if there is a good point, the decision being challenged should not be reviewed.  The claimant did not suggest that any of the Commissioners’ decisions was wrongly decided or unclear or inconsistent with any other decision and that it was therefore necessary for the Upper Tribunal to consider any issue of principle afresh.  The First-tier Tribunal judge has failed to identify, from among the grounds, any arguable point of law.  If there was none, permission to appeal should have been refused, unless the judge could identify some other compelling reason for granting permission.  The need for guidance to avoid a repetition of error in the individual case cannot be a compelling reason if there is no identifiable error of law, since there will be no rehearing in the absence of such an error.  Moreover, a detailed analysis of one tribunal’s failure to provide adequate reasons will not necessarily be of assistance to a tribunal rehearing the case, which should be familiar with the standard of reasoning required and will, in any event, have made its own findings of fact based on its own reasons.  Nor has the judge identified from among the claimant’s grounds any particular issue upon which general guidance is required, which is not surprising since this was an unremarkable case in, as is clear from the number of decisions cited, a well-trodden area of the law.

4. I have to say that I have some doubt about at least most of the claimant’s grounds although, since I am prepared to allow the appeal on another ground, I need not consider them all in detail.  The First-tier Tribunal’s reasoning was brief – much of the statement of reasons being a recitation of the evidence – but, in its context and having regard in particular to the record of proceedings, most of it seems clear enough.  The First-tier Tribunal did not accept that the claimant, who was overweight, and suffered from osteoarthritis in her left knee, hypertension and depression, was as disabled as she said she was.  It considered that she could greatly have extended her ability to walk without severe discomfort by using a wheeled frame or other aid.  The claimant claimed no night time care needs.  As to day-time needs, it did not accept that she needed attention in connection with her bodily functions because the medical evidence, which was directed towards her lack of mobility and depression, did not support her.  It did not accept that there was a need for continual supervision because there was no risk of a substantial danger from falls, although she had suffered minor bumps and bruises in the past. It plainly regarded the risk of falling to be slight and one that could be reduced further, if not eliminated, if a walking frame were used.  However, the reasoning in respect of falls cannot be found in the statement of reasons; it must be inferred from the record of proceedings, which is not satisfactory, and the claimant is right that nowhere is there a direct explanation for the apparent rejection of her argument that, in the absence of supervision, there would be a risk of substantial danger to her because she would be unable to get up if she did fall.  Nor was there any reference to the lower rate of the mobility component.

5. In any event, there does seem to me to be one very clear error by the First-tier Tribunal, which is not actually among the claimant’s grounds but has been adopted by the Secretary of State after I raised it.  In relation to the “cooking test” (see section 72(1)(a)(ii) of the Social Security Contributions and Benefits Act 1992), the claimant’s case was that she could not stand for long enough to cook because of the pain in her knee.  The First-tier Tribunal raised with her the question of having a chair or perching stool in her kitchen, to which she replied that the kitchen was too small.  All that the First-tier Tribunal said on this aspect of the case was –

“16. Inasmuch as the Appellant claims that her ability to cook for herself is impaired because she could not fit a chair or perching stool in her kitchen, the size of her kitchen is not a consideration to be taken into account, as the test is whether she is capable of carrying out the sequential tasks to create a simple main meal for one with the use of suitable aids appropriate to her disabilities; not the surroundings in which the meal is to be created.”

6. I do not consider that, since CDLA/700/2000 was decided, it can be regarded as correct that the size of a claimant’s kitchen must be disregarded.  Entitlement to disability living allowance must, in my judgment, depend on the amount of help a person reasonably requires to live in her own home or, in relation to the “cooking test”, on whether she can reasonably be expected to prepare a cooked main meal in her own home, so that aids or adaptations may be taken into account but must be suitable having regard to the circumstances in which they are to be used.  In truth, I doubt this makes much difference in most cases but the effect of the First-tier Tribunal’s approach in the present case is that it failed to look more closely at the question of the suitability of a chair or perching stool as an aid.  If the size or layout of a kitchen means that it would be necessary to keep getting up and down and moving the chair or stool in order to get at cupboards and other parts of the kitchen, which might not be practical in view of the claimant’s disabilities, that may be a ground for finding that use of a chair or stool would not be reasonable.

7. I am therefore satisfied that the First-tier Tribunal made a material error of law and I allow this appeal accordingly.  I agree with the Secretary of State that the case should be remitted to the First-tier Tribunal.

8. It is, as I have said, unnecessary for me to deal with all the claimant’s points, but one I should mention is that she complains that her companion was told not to speak on her behalf, even though she was becoming distressed by the First-tier Tribunal’s questioning, and that what the companion did say was ignored.  The First-tier Tribunal is entitled to order its proceedings so that only one person speaks at a time and it is also entitled to ask difficult questions.  However, if someone who has accompanied a claimant wishes to speak, it seems to me that the First-tier Tribunal should remember that that person may well be able to give material evidence and, unless the claimant objects, it should give him or her an opportunity to do so, even if not immediately and it should then make a note of the evidence as it would evidence from the claimant.  I need make no finding as to exactly what happened in this case but there is no record of any evidence being given by the companion.

9. Finally, I observe that the claimant has provided more evidence to the Upper Tribunal, some of which is within her grounds of appeal and response.  The panel of the First-tier Tribunal to whom I now remit this case will need to consider the whole case afresh, taking account of that new evidence insofar as it is relevant to the position as it was at the date of the Secretary of State’s decision in June 2011.  Even if it were to reach the same conclusion as the panel whose decision I am setting aside, it would need to give rather more detailed reasons than did that panel, in order to deal properly with the claimant’s case as now presented.

Mark Rowland

30 August 2012