Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: CDLA/1094/2012

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

 

DECISION

 

 

The Upper Tribunal allows the appeal of the appellant.

 

The decision of the First-tier Tribunal sitting at Plymouth on 6.10.11 under reference SC200/11/00905 involved an error on a point of law and is set aside.

 

The Upper Tribunal is not in a position to decide whether the Secretary of State was not entitled to Disability Living Allowance with effect from 28.07.10.  It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.  

 

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

 

 

DIRECTIONS

 

Subject to any later Direction by a First-tier Tribunal Judge, the Upper Tribunal directs as follows:

 

(1)            The appeal will be at an oral hearing.

 

(2)            The appellant is reminded that the tribunal can only deal with her situation as it was down to 4.10.10 (the date of the Secretary of State’s decision under appeal) and not any changes after that date.

 

(3)            If the appellant has any further evidence that she wishes to put before the tribunal this should be sent to the First-tier Tribunal’s office in Cardiff within one month of the date this decision is issued.

 

(4)            The First-tier Tribunal should have regard to the points made below.

 

 

 

 

 

 

REASONS FOR DECISION

 

 

Introduction

 

 

1.               This is an appeal by the claimant from a decision of the Plymouth First-tier Tribunal (Social Entitlement Chamber) dated 6.10.11. I will refer to this from now on as “the tribunal”. The tribunal upheld the decision of the Secretary of State for Work and Pensions of the 4^th of October 2010 to the effect that the appellant was not entitled to Disability Living Allowance (“DLA”) from and including 28.07.10.

 

Permission to Appeal

2.               Permission to appeal to the Upper Tribunal was refused in the first instance by a District Tribunal Judge on 23.02.12. However, Upper Tribunal Judge Turnbull gave permission to appeal on 2.07.12.  He did so on the basis that “Having regard, in particular, to paragraph 14 of the Statement of Reasons (where the Tribunal said it accepted the Appellant’s written evidence), the grounds of appeal require consideration of the evidence to an extent which would not be appropriate on an application for permission to appeal.  The grounds of appeal relating to paragraphs 6 and 7 of the Statement of Reasons, in particular, may be arguable.  The Secretary of State is requested to address all the grounds in his submission”.

 

Secretary of State’s Stance

 

3.               The Secretary of State, in a submission dated 31.07.12, supports the appeal. However, he does so in substance only in respect of what may be called paragraph 6 of the tribunal’s statement of reasons, says nothing about paragraph 7, and, despite the request of Judge Turnbull, does address any of the other grounds of appeal.

 

4.               This submission was issued to the appellant on 19.07.12.  In order to try and answer one of the queries raised by the appellant in his observations in reply about the covering letter that the Upper Tribunal sent with that submission, all that covering letter was seeking to communicate was that the Upper Tribunal had itself to be satisfied that the tribunal had erred in law and it was therefore not bound by the view of either of the parties to the appeal (claimant or Secretary of State) as to whether there had been an error of flaw.

 

5.               I may also here add that I do not agree with what the appellant understands Judge Turnbull meant by the first sentence quoted above. Judge Turnbull was not saying that the First-tier Tribunal “should not have subjected the appellant’s appeal to an application for permission to appeal and this was to err in law” (see paragraph 8 of the appellant’s observations in reply on page 394).  For one thing, before an application for permission to appeal can be made to the Upper Tribunal an application for permission to appeal must first have been made to the First-tier Tribunal.  In any event, all Judge Turnbull intended to mean by the first sentence quoted in paragraph 2 above was that as the appeal to the tribunal was factually complex and as the tribunal had accepted what the appellant had told it in writing about his condition, permission to appeal should be granted so as to enable proper consideration to be given to the appellant’s evidence to the tribunal and whether that tribunal dealt with it in such a way as not to give rise to any material error of law. That is why Judge Turnbull then requested that the Secretary of State address all of the grounds of appeal in his submission. It is disappointing that the Secretary of State did not do so, but that omission does not really inhibit the Upper Tribunal’s ability to decide this appeal properly.

 

The Appellant’s Observations in Reply

 

6.               The appellant filed observations in reply to the arguments of the Secretary of State on 30.08.12.  I have addressed some of the comments he made in those observations above. Those observations ranged over a wide field concerning the appellant’s dealings with the Department for Work and Pensions and his claim for DLA. It must be emphasised that on this appeal the Upper Tribunal is limited to considering whether the tribunal materially erred in law when coming to its decision.  In so far as the other, wider matters to which the appellant refers do not touch on whether the tribunal erred in law then they are irrelevant. Furthermore, if, as here, it is decided that the tribunal did so err in law, then the appellant’s remedy is to have the appeal remitted for a completely fresh hearing before three completely different members of the First-tier Tribunal, at which the task of the new tribunal will be to decide afresh whether or not on the facts about the appellant’s mobility problems and care needs between the end of July and the beginning of October 2010 he qualified for DLA.

   

Upper Tribunal’s Decision

 

7.               The appeal was passed to me for decision on 15.10.12.  In my judgment the tribunal did err in law in its decision, and for that reason its decision of 6.10.11 must be set aside.

 

8.               As I am not in a position to decide the appellant’s entitlement to DLA on his claim of 28.07.10, the appeal needs to be remitted to a completely differently constituted First-tier Tribunal for it to be decided afresh.  An additional benefit of this course of action is that this new tribunal will be able to bring to bear its specialist and diverse expertise to deciding whether the appellant was entitled to DLA on his July 2010 claim for that benefit. In so doing, and it may benefit the appellant to note this, all the relevant facts will have to be considered, including what the appellant tells them about how he was in July to October 2010 (he having now made it clear that he would wish to attend any rehearing of his appeal). The new tribunal has to, in effect, stand in the shoes of the Secretary of State on 4.10.10 and, looking at all the evidence relevant to the appellant’s walking outdoors and care needs at that time, decide what award of DLA, if any, is merited on that evidence.

 

Oral Hearing

 

9.               The appellant sought an oral hearing of this appeal to the Upper Tribunal; the Secretary of State has not. In fairness to the appellant, however, he does couch his request for a hearing in terms of “if the tribunal feels an oral hearing is required” (see para. 18 of his observations on page 395) or if there is to be a contested hearing of this appeal to the Upper Tribunal (see para. 22 on page 396).  Neither of these is the case. In these circumstances, and given that I am satisfied, in any event, that the appeal can be decided without a hearing, I have decided it on the basis of the written submissions alone.

 

10.            However to avoid any possible confusion, I re-emphasise, that the hearing of the appellant’s appeal  against the Secretary of State’s decision of 4.10.10 will have to be considered afresh at a fresh hearing, with the appellant attending. 

 

Errors of Law

 

Proceeding in appellant’s absence

   

11.            This was an appeal which was listed for a hearing on 6.10.11, at which the appellant was expected to attend.  The tribunal addressed this issue in paragraph 1 of the statement reasons.  It said this:

 

“The clerk telephoned [the appellant] and he asked for the hearing to proceed in his absence.  If at any stage I had felt the matter ought not to proceed I would have considered an adjournment.  I was satisfied the Tribunal could go ahead.”

 

12.            Is this enough to show that the tribunal had properly decided to proceed and decide the appeal in the absence of the appellant?  In my judgment, it is not.

 

13.            For a start it is couched in terms of the statement writer (the Judge) making the decision and exercising his mind as to whether to proceed.  However, the decision was for the tribunal as a body (of 3) to make and not for the Judge alone. This is made plain from the terms of paragraph 4 of the Senior President of Tribunals’ Practice Statement “Composition of tribunals in social security and child support cases in the social entitlement chamber on or after 3 November 2008”, which provides that where the appeal relates to DLA the Tribunal must be composed of a judge, a doctor, and a “carer member”.  The only relevant exception to this is in paragraph 10 of that same practice statement, which refers to interlocutory decisions being made by a judge alone.  However, as paragraph 10 of the practice direction makes plain, that exception does not apply to rule 31 in the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the “TPR”), and it is that rule 31 which is expressly concerned with the decision whether to proceed and decide an appeal in the absence of a party to the appeal. That rule 31 decision must therefore be made by the First-tier Tribunal as a whole.

 

14.            One inadvertent and mistaken use of the personal pronoun “I” may have just been a simple typing error, but the use of “I” twice in the first paragraph, and when contrasted with the statement writer then referring in the next paragraph to the “task for the Tribunal”, on its face indicates that the decision whether to proceed was made by the Judge alone; or at least clearer reasons were needed, in my judgment, to show despite this that the decision to proceed in the appellant’s absence was one taken by the tribunal as a whole. I should add that consideration of the record of proceedings does not assist here so as to show the tribunal as a body of three considering whether to proceed in the appellant’s absence or not (entirely unsurprisingly because the proceedings never started and no evidence was taken).

 

15.            Secondly, and in any event, rule 31 of the TPR sets out two matters that the tribunal must be satisfied of before it proceeds to hear the appeal in a party’s absence. The first is that it is satisfied that the party has been notified of the hearing; the second that it considers it is in the interests of justice to proceed with the hearing.  The first of these may well not have been in issue on this appeal. However, did the tribunal give positive and proper consideration on whether it was in the interests of justice to proceed? In my judgment, on balance, it did not in that its reasoning does not indicate sufficiently that it did. 

 

16.            I remind myself here of the words of Judge Mesher in paragraph of KH –v- CMEC (CSM) [2012] UKUT 329 (AAC):

 

“In relation to the question of whether the tribunal of 26 January 2011 adequately showed that it had applied the test of the interests of justice under rule 31(b), on the assumption that rule 31(a) was satisfied, again I do not wish to express a definite conclusion. There is considerable force in Mr Cooper’s criticisms of what was said on the decision notice and the statement of reasons. Any tribunal that does not expressly refer to rule 31 or at least to a test of the interests of justice when it has made a decision after a hearing from which a party was absent has laid itself open to anxious scrutiny. That is both because rule 31 goes to the tribunal’s capacity to proceed with a hearing at all and because the discretion under rule 31(b) is a judicial discretion, as emphasised by Judge Lane in JF. Such a discretion must be exercised consciously, with proper regard to the governing test, and the tribunal must show, at least if a statement of reasons is requested, that the relevant factors have been considered and weighed up. That need not be done with any great elaboration (in many cases a few sentences will suffice), but for the reasons given above it must be done in any statement. It would certainly be best practice, and again calculated to avoid subsequent expenditure of time and trouble, for a similar explanation to be recorded on the record of proceedings. There is at least considerable doubt whether the tribunal here did enough to show that it had taken into account relevant factors and had weighed them up with proper regard to the test of the interests of justice.”. 

Further, as Judge Lane put it in JF –v- SSWP (IS) [2010] UKUT 267 (AAC):

 

“Under rule 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the Rules) a tribunal may hear an appeal in absence where an appellant fails to attend a hearing if it is satisfied that the appellant has been properly notified of the hearing (this is not in issue) and it is in the interests of justice to do so. 

 

A decision on whether it is in the interests of justice to proceed requires an exercise of judicial discretion.  Under the Rules, this is informed by Rule 2(1), which states that the overriding objective of the Rules is to enable the tribunal to deal with cases fairly and justly.  The factors which are included in that assessment are set out in rule 2(2).  These serve to focus the tribunal’s mind on matters relevant to that consideration.  Not every factor will be appropriate to the circumstances of every case.  At the end of the day, the question under rule 2(1) is whether the tribunal has dealt with a case fairly and justly. 

 

The Record of Proceedings indicates that the tribunal considered the problem of the appellant’s absence (p181) and noted that credibility issues arose, but came to the conclusion that it could proceed.  In the context of a hearing in which the appellant fails to appear (or, indeed a paper hearing), it is useful to bear in mind that in practice, a tribunal can backtrack on a decision to hear the appeal in absence if it become apparent that oral evidence (or further evidence) would assist it.  It is plain from the Statement of Reasons that, in light of bank statements produced to it, the tribunal found it implausible that a large sum of money whose ownership was disputed derived from an inheritance.  But even if it could be said that this evidential reason was insufficient to justify the decision to proceed, it made no difference since the telephone message from the appellant must, on balance, have requested that the hearing go ahead.”. 

 

17.            The record of proceeding here recorded “DNA – clerk to call and see if coming”, “14.05 No attendance. Treat as paper case? Clerk called App – proceed in absence”. It then proceeds to discuss, in brief, the merit of the appeal.  There is nothing recorded about the “interests of justice” or what factors weighed in favour of deciding the appeal on the day. The decision notice is silent on this issue.  The statement of reasons, in paragraph 1, sets out “The appellant requested an oral hearing. He failed to attend.  The clerk telephoned him and he asked for the hearing to proceed in his absence. If at any stage I had felt the matter ought not to proceed I would have considered an adjournment. I was satisfied the Tribunal could go ahead.”. None of this refers to the tribunal’s view on whether it was in the interests of justice to proceed, the very issue it had to consider under rule 31.

 

18.            Of course one factor plainly telling in favour of proceeding is the apparent request by the appellant for the appeal to be decided in his absence. However, I would suggests that some care needs to be taken here. The context was of an appeal where the appellant had asked for a hearing at which he would attend.  Just as in rule 27 of the TPR cases where weight can rightly be attached to a person’s decision to ask for his or her appeal to be decided on the papers and without a hearing, I would suggest that weight ought to be attached to a person first having asked for an oral hearing of his or her appeal and then not having taken any pre-emptive steps to rescind that request.  This is not to suggest that a person cannot change his or her mind, and plainly rule 31 of the TPR is predicated on a person who has asked for a hearing not attending and, further, contemplates that the hearing may proceed in his or her absence. But, in my judgment, the reasons (a) why a person is unable to attend, and (b) why he or she wishes to have the appeal heard in his or her absence, are relevant considerations that must factored in when exercising the rule 31 of the TPR judicial discretion where, as here, such reasons can be obtained. In other words, has the person, in effect, made an informed decision to rescind the request for an oral hearing, or is it just force of circumstance (e.g. stuck at home with a suddenly ill child) that has led the person to (hurriedly) change his or her mind and agree that the appeal be heard in their absence?  This perspective is in my view underscored by rule 2(2)(c) of the TPR with its express reference to the First-tier Tribunal dealing with a case fairly and justly by “ensuring, so far as is practicable, that the parties are able to participate fully in the proceedings”.  

 

19.            Furthermore, as Judge Lane points out in JF, notwithstanding the apparent choice of the appellant, the facts of the case may well be relevant to whether it is in the interests of justice to proceed in his or her absence.  Here, relevantly, these included (a) the fact that the appellant had indicated on the 26^th May 2011 that he wished to attend and call possibly two witnesses at the hearing (see pages 144 and 155), (b) that the appellant had learning difficulties and cognitive problems[1], (c) that the appellant had “produced a vast amount of documentary evidence and argument, much of which indicates that whoever has been advising him has misunderstood what might have assisted him…the inclusion of much of that documentation lent no assistance to the Appellant whatsoever. Indeed, so much of what had been submitted was irrelevant, repetitive or verbose.  It was difficult to pick out what was actually helpful to him. Difficult but not impossible.” (para. 4 of the statement of reasons), and (d) that the Tribunal found it “very difficult to get a picture of how the Appellant spends a typical day”.

 

20.            These, too, are factors that in my judgment fell to be taken into account when  the tribunal exercised its discretion in deciding whether it was in the “interests of justice” to proceed with the hearing (in effect, to decide the appeal) in the appellant’s absence.  Also relevant here is the terms of rule 2(2)(c) of the TPR that I have referred to at the end of paragraph 18 above.

 

21.            In my judgment the compressed reasoning in paragraph 1 of the statement of reasons does not show sufficiently that regard was had to these factors and the “interests of justice” when the tribunal decided to proceed in the absence of the appellant.

 

22.            I must make clear, however, that I am not here saying that the tribunal was in error in deciding to proceed in the absence of the appellant and that it ought to have adjourned. It may well be that having weighed up all of the factors referred to above - and others, such as the time it would take to relist the appeal for hearing,  the inconvenience caused to other appellants if another hearing slot had to be allocated to this appeal, and the availability to the appellant of the set aside procedure under rule 37 of the TPR – that the three members of the tribunal could properly have concluded that it was in the interests of justice to hear the appeal in the appellant’s absence.  But, in my judgment, the decision to exercise the tribunal’s judicial discretion in that way required fuller reasoning than was given here given that there were a number of competing factors that needed to be considered and weighed in coming to that decision.

 

23.            I am also not saying that the tribunal was wrong to use the clerk to contact the appellant.  However, I would suggest that if that course is to be followed then the First-tier Tribunal needs to give clear instructions to the clerk about the questions it wants answered (e.g. why is the appellant not here, can he or she be here soon, why does he or she now want the appeal decide in his or her absence?) and get back from the clerk, as far as is possible, clear answers to those questions or reasons why such answers were not given; and those questions and answers are then recorded in the record of proceedings, decision notice or statement of reasons.

 

24.            Thirdly, and more specifically, the tribunal had before it evidence that “telephone conversations are difficult for [the appellant] to process” (page 4) and that he had “great difficulty in understanding telephone calls” (page 9).  The appellant gave examples of this on pages 35 and 37 (and see further the last full paragraph on page 258). The First-tier Tribunal, as noted above, expressly accepted what the appellant had told it in the papers about his difficulties, and it noted in paragraph 11 of the statement of reasons the use by the appellant of a recording device to play back conversations so as to absorb the information given (in some cases) over the telephone.  Given this uncontested evidence, in deciding to proceed in the absence of the appellant based on a telephone conversation he had had with the clerk, the tribunal had, in my clear judgment, to address in its reasoning why it considered, despite the evidence to the contrary, that a telephone conversation with the appellant was a secure and safe method of its obtaining an informed view from the appellant as to whether he wanted the appeal to be decided in his absence.  The failure of the reasoning to grapple with this fundamental issue means that the tribunal erred in law in coming to its decision. 

25.            Whether taken singularly, but especially when taken together, the three areas addressed above show that the tribunal’s reasoning as to why it decided to proceed and decide the appeal in the appellant’s absence was plainly inadequate.  As this goes to a fundamental aspect of that tribunal’s decision-making process, and thus its decision, the decision must be set aside.

 

26.            Furthermore, it matters not, in my judgment, that the appellant has not expressly raised this point nor has the Secretary of State addressed it. 

 

27.            In fact, the appellant’s case on this, if anything, simply muddies the waters, because he says on page 268 that he has no objection to paragraph 1 of the statement of reasons “other than I gave written reason for non-attending prior to the hearing, which was under advice from the Tribunals Service themselves”. I cannot find any record of those written reasons in the papers[2] less so any advice from the Tribunals Service that may have led the appellant to write them. I am not prepared to further lengthen the time this appeal has taken for that issue to be investigated. The error of law identified above arises from the tribunal assuming, correctly on the evidence before it, that the appellant would attend the hearing and how it then addressed the issue of deciding the appeal in his absence, and not whether it should decide the appeal without a hearing under rule 27 of the TPR (as to which the factors referred to in paragraphs 13-14 and 19-21 may well have been relevant).

 

28.            If in fact there were written reasons that had been submitted but which were lost, and if in those reasons the appellant had made it plain, on an informed basis, that he was simply not going to attend the hearing of his appeal, then that may have been relevant to whether the above error of law by the tribunal had any material bearing on the decision it made, and so may have been relevant to whether its decision ought to be set aside.  However, as the decision is being set aside on the other grounds set out below, I need not investigate this matter further.

 

29.            As for the Secretary of State, as noted above, he was content to address only one of the grounds of appeal and for the decision of the First-tier Tribunal to be set aside on that basis. In these circumstances, I do not consider that it was either necessary or expedient to seek further views from him on the error of law identified above.  Had this been the only error of law and had the issue raised in paragraph 28 above thus become relevant, then I would of course have sought further views from him (and the appellant) on that issue.

 

GP report

 

30.            This is the ground that the Secretary of State expressly supports. It arises in this way.  In the papers was a report from the appellant’s GP practice (pages 81-84). It had been sought by the DWP, as is not uncommon on DLA appeals. In terms of the appellant’s functional abilities it simply said it did not know whether they were restricted. However it did say that there was “[n]o formal confirmation in notes of “Meares Irlen” syndrome, adult learning difficulties, impaired cognition or vision problem, which does not mean [patient] is not suffering from above”. Apart from hearing, these were the four main conditions the appellant was relying on as underpinning his claim for DLA (see page 14).

 

31.            Before the hearing of his appeal the appellant argued (see para. 5.5 on page 181[3]) that this was disputed: firstly, because the report was not from his GP but a locum; secondly, because it omitted to mention that the locum GP had requested adult social services to contact the appellant in order to provide support; and thirdly, because the locum GP had failed to input the appellant’s disability assessment records onto the surgery system and that is why there was no record for the locum GP to comment on.  The appellant further contended that these deficits had now been corrected by his GP on the surgery records.  It is unclear whether the appellant had himself provided the tribunal with those records: though para. 5.5 on page 181 does not say he has.

 

32.            The tribunal addressed this GP report in paragraph 6 of its statement of reasons. It said that it was “clear” that this report was “based upon the Appellant’s health records”.  It went on to say that “those records do not reveal a history of the health issues claimed by the appellant nor did those records reveal whether the Appellant’s health problems impact upon his ability to look after himself and get around”.

33.            There are a number of problems with this statement. As I have alluded to in paragraph 19 and footnote 1 above, it does not explain what the tribunal made of this report. I agree with Secretary of State that, as he puts it, “it clearly must have been important enough in the tribunal’s mind to be accorded a separate paragraph in its Statement of Reasons”.  But why? Did the tribunal draw from it that the appellant did not in fact have “Meares Irlen” syndrome, adult learning difficulties, impaired cognition or vision problems?  If it did then that sits  oddly with the tribunal later saying that it accepted what the appellant had told it about his difficulties, that he was believed and that it accepted what he had told it about his condition (which presumably covers what he said about his illnesses and disabilities on page 14 – where he set out that he had, inter alia, “Meares Irlen” syndrome, adult learning difficulties, impaired cognition and vision problems).

 

34.            Moreover, what did the tribunal make of the appellant’s argument on page 181 that the report was not based on his (complete) records? Paragraph 6 of the statement of reasons says nothing at all about this.  That paragraph does not say the GP report was based on the appellant’s health records as known to the GP at that time, and only a pedant would argue otherwise.  The plain implication of paragraph 6 to any normal reader is that the report was based upon the appellant’s full medical records.  That may or may not be true, but the tribunal was required in its reasoning, in my judgment, to explain (a) the relevance of the GP report to the appellant’s entitlement to DLA, (b) the findings it drew from that report (and how those sat with what the appellant had said), and (c) what it made of the appellant’s arguments that the report was incomplete because it was based on partial records.

 

35.            I do not go as far as to say, as the Secretary of State seems to, that the tribunal erred in law by not calling for a fresh GP report. I do not go that far because I cannot tell what relevance the GP report the tribunal did have had to its decision, nor can I tell whether the tribunal accepted that it was an incomplete report or not. In other words, it is wholly unclear whether the tribunal ever got as far as to question GP report such that it may have thought a fresh report was needed.  In my judgment it is enough that the tribunal have, on the face of it, relied on the report but not explained adequately why it was being relied on.

 

36.            This failure of reasoning of itself is enough to render the decision erroneous in law such that it needs to be set aside.

 

Lower rate mobility component

 

37.            The appellant made no claim for help when walking outdoors on the claim form (page 24).  However on page 182 in his expanded and lengthy grounds of appeal to the tribunal he did place entitlement to the lower rate mobility component (“lrmc”) squarely in issue before that tribunal and in a way which substantially engaged the tests for the lrmc. For example, on page 182 he referred to a number of instances where he said he had become lost on walking to or in unfamiliar areas because of his difficulty in following instructions (written or verbal). On its face this claim was neither fanciful nor lacking in evidence to support it, and thus needed to be addressed by the tribunal.

 

38.            The tribunal addressed entitlement to the lrmc in paragraph 13 of the statement of reasons.  It noted, correctly, that the appellant had not initially claimed lrmc on the claim form. Plainly that may have been relevant (for example, as evidencing that the problem, if it existed, may have arisen later), but the tribunal says nothing about the relevance of this fact.  It then goes on to say:

 

“at one point he had contended for the [lrmc] but we found that this man can safely navigate on unfamiliar routes.  He will not find himself in danger and does not require guidance or supervision most of the time when walking in unfamiliar routes”.

39.            However, no explanation is given by the tribunal of why it arrived at these findings and the evidence it relied on as supporting them.  Moreover, the above says nothing about the case for the lrmc that the appellant had advanced on page 182. Did the tribunal accept what he said on page 182 but consider that the help he had there recounted did not amount to guidance or supervision? Or did it not accept what he said? The reasons had to address these issues adequately and they did not do so.  Again, this failure of reasoning renders the decision erroneous in law such that it has to be set aside.

 

Paragraph seven of the statement of reasons

 

40.            As I am setting aside the decision of the tribunal on the three grounds set out above, I do not consider it necessary to address the appellant’s argument about what he says are the inadequacies in paragraph seven of the statement of reasons.

 

41.            However I will say that, as I think was also the view of Judge Turnbull, there may be substantial merit in the appellant’s criticisms (see pages 270-272) of that paragraph seven. The First-tier Tribunal to which this appeal is now remitted will need to take care in making clear findings of fact as to the appellant’s underlying health conditions and how they were affecting him in July to October 2010.

 

Conclusion

 

42.            It is for the reasons given above that the tribunal’s decision dated 6.10.11 must be set aside.  The appeal will have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber).  The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether his appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess once it has properly gathered all the relevant evidence and applied the rules correctly.

 

43.            It is noted that the appellant has said he will attend the hearing of his appeal before the First-tier Tribunal. I cannot direct him to do so. However, if I may, I will say that on a case with so much detail in the papers (some of which is not entirely clear as to its relevance to the DLA entitlement rules), and where the previous tribunal struggled to understand properly what the appellant’s needs were solely from the paperwork before it, it would almost certainly assist the First-tier Tribunal to decide this appeal if it was able to see the appellant and talk to him about the problems he had with walking outdoors and caring for himself back between July and October 2010.

 

 

 (Signed) S. M. Wright

Judge of the Upper Tribunal

 

Dated 28^th November 2012