IN THE UPPER TRIBUNAL Case No  CE/3146/2011

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Fox Court on22 March 2011 under reference 242/10/07698 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 8 of the Reasons.

REASONS FOR DECISION

1. Both the claimant’s representative 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 had appealed against decision taken on 12 February 2010 under which she had scored nil points under the descriptors then in force.  At the tribunal hearing, her representative invited the tribunal to focus on the descriptors of walking, rising and sitting.

3. I gave permission to appeal in the following terms:

“1. Did the tribunal err by  disqualifying the claimant from descriptors 1(d) or (e) on the basis of how far she could walk without “repeatedly” stopping, when the word “repeatedly” only formed part of the descriptor 1(b)?

2. Did the tribunal err by failing to put its observations of the length of time for which the claimant had been able to sit to her and/or by failing to relate it to the date of the decision under appeal?

3. Did the tribunal overlook material evidence, inter alia in evaluating the severity of the claimant’s arthritis by reference to her not having been referred to hospital in this regard when there was evidence that she had been; and in evaluating the weight to be placed on the evidence of the GP in concluding that he had never referred the   claimant for any investigative treatment when there was at least some evidence that he had?

4. Even if one accepts the tribunal’s approach to rising and bending and kneeling, there at least remains the possibility that if the above were errors, they were material, in that the claimant might have got 9 points for walking and 6 for sitting.”

4. In a submission dated 9 August 2012 the Secretary of State’s representative agrees with the errors of law identified and

I have set the tribunal’s decision aside accordingly.

5. There is only one aspect on which I need to comment further and it relates to the first of the grounds in [3] above.  The tribunal found that:

“the appellant is able to walk more than 200 meters without repeatedly stopping or severe discomfort.”

At the material time:

Descriptor 1b read “cannot walk more than 50 metres on level ground without repeatedly stopping or severe discomfort”

Descriptor 1d read “cannot walk more than 100 metres on level ground without stopping or severe discomfort.”

Descriptor 1e was in similar terms to descriptor 1d, save for substituting 200 meters for 100 metres. 

6. The Secretary of State argues (though ultimately accepting that there was an error on ground 1 also) that

“by finding fact that the claimant was able to walk more than 200 meters without repeatedly stopping is just the same as saying the claimant can walk that distance without the need to stop.”

I do not regard this view as tenable.  A person who has to stop only once in the course of walking up to 100 or 200 metres as the case may be was entitled at that time to the benefit of descriptor 1d or 1e as the case may be, even though he or she, as they only needed to stop once while covering that distance, could not be said to stop “repeatedly”.

7. I do not need to deal in detail 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.

8. 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.

9. 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