IN THE UPPER TRIBUNAL Case No  CE/1880/2012

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Leicester on 15 November 2011 under reference 038/10/03717 involved the making of an error on a point of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 5 of the Reasons.

REASONS FOR DECISION

1. Both the claimant and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing.  That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail.  I need only deal with the reason why I am setting aside the tribunal’s decision.

2. The claimant has epilepsy. He also has learning/behavioural difficulties with a suggestion (but no recent formal diagnosis ) of ADHD/Autistic Spectrum Disorder.  He  appealed against a decision dated 24 August 2010, when he was 20 years of age, that he scored nil points on the descriptors then in force.  At that time he was in receipt of disability living allowance pursuant to an award made in June 2009 of the lower rate of the mobility component and the middle rate of the care component.  The care component was awarded on the basis (document 32) that he met the day supervision condition, that is to say that he reasonably required “continual supervision throughout the day in order to avoid substantial danger to himself or others”.  The oral evidence was that he had been in receipt of DLA “since childhood” (document 35).  By a letter dated 7 October 2011 the claimant’s representative had submitted that regulation 29 of the Employment and Support Allowance Regulations 2008 should apply to him because of his learning difficulties and frequent epileptic attacks.  Under that regulation a person is to be treated as having limited capability for work if “the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.” 

3. I have set the tribunal’s decision aside, because the tribunal failed to deal adequately with the submission that regulation 29 should be applied.  This was an error in particular in the light of the relatively recent decision by the DWP that the claimant needed continual day-time supervision, with which the tribunal did not deal at all.  If the DLA decision was to be relied upon, questions would then arise of what range or type of work the claimant could do and yet receive the supervision necessary to avoid substantial danger to himself or others.  If the DLA decision was not to be relied upon, the tribunal needed to say so and explain why.  The tribunal either failed to deal with the issue, or, if it did deal with it, it failed to give a sufficient account of its reasoning to enable the losing party to understand why he was unsuccessful on that issue.

4. I do not need to deal with any other error on a point of law that the tribunal may have made.  Any that were made will be subsumed by the rehearing.

5. I direct that the tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.  While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.  The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.

6. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

(signed)

C.G.Ward

Judge of the Upper Tribunal

8 November 2012