DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

The decision of the Chester First-tier Tribunal dated 15 March 2012 under file reference SC065/11/02640 involves an error on a point of law. The First-tier Tribunal’s decision is set aside.

The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the appellant’s appeal against the Secretary of State’s decision dated 09 July 2011 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below. 

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

DIRECTIONS

The following directions apply to the hearing:

(1) The appeal should be considered at an oral hearing. 

(2) The new First-tier Tribunal should not involve the tribunal judge or members who were previously involved in considering this appeal on 15 March 2012.

(3) The appellant is reminded that the tribunal can only deal with the appeal and his circumstances (including his state of health) as at the date of the original decision by the Secretary of State under appeal (namely 09 July 2011).

(4) If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the HMCTS regional tribunal office in Liverpool within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above). 

(5) The District Tribunal Judge who makes directions for the re-hearing of this appeal may wish to consider making a request to the appellant’s GP for copies of medical notes for the relevant period.

(6) The re-hearing is concerned with the appellant’s entitlement to DLA (or not) for the closed period from 21 June 2011 to18 March 2012.

(7) The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

The Upper Tribunal’s decision in summary

1. The appellant’s appeal to the Upper Tribunal is allowed. The decision of the First-tier Tribunal involves an error on a point of law. For that reason I set aside the tribunal’s decision.

2. The case now needs to be reheard by a new First-tier Tribunal (FTT). I cannot predict what will be the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the re-hearing of the appeal before the new FTT will succeed on the facts.

3. So the new tribunal may reach the same, or a different, decision to that of the previous tribunal. It all depends on the findings that the new tribunal makes.

The unusual nature of the case

4. As I noted when giving permission to appeal, this is a rather unusual case. The appellant stated that he suffers from a number of conditions, including angioedema (swelling of the skin tissue), which is triggered by environmental factors. The FTT recorded the appellant’s evidence that the tribunal clerk’s perfume had caused him tongue paralysis (but that they could understand his evidence easily). The appellant also stated that he would get retinal haemorrhaging on blowing his nose. This may sound improbable but the consultant neurologist’s letter suggests that valsalva (forcibly exhaling while keeping the nose and mouth shut) may have been the cause of some temporary visual disturbance in the appellant’s case in the past (23 February 2010 at doc 41).

5. I also note the evidence in the letter from the consultant immunologist (24 October 2010, doc 48), to the effect that the appellant has a conversion disorder, manifesting symptoms that are genuinely felt, and may become limiting or disabling, but which have no underlying organic or physical cause.

The proceedings on appeal to the Upper Tribunal

6. The appellant’s representative lodged an appeal against the FTT’s decision, arguing in essence that the tribunal which had refused his appeal had failed to give adequate reasons for the decision that he was not entitled to the lower rate mobility component of disability living allowance (DLA). The FTT’s findings in this regard were as follows: “He said he goes by himself to Tesco when he knows he’ll be able to cope and he came to the appeal hearing by taxi… he can and does go outdoors alone without the need for guidance and supervision.”

7. For the benefit of both the previous tribunal and the next FTT, I should explain that, in giving permission to appeal, I also commented as follows:

‘… It may be that in paragraph 8 of the statement of reasons the tribunal has essentially done little more than restate the statutory test for entitlement (and then only in part). The tribunal’s findings in paragraph 9 may well be supportable by reference to the evidence, both medical and otherwise. However, has the tribunal simply assumed that because the appellant’s belief was seen as “irrational”, as having no known cause, that therefore it does not exist and has no effect? The decision of the Tribunal of three Social Security Commissioners in R(DLA) 3/06 may be relevant in this context.’

8. Mrs Janet Camponi, who now acts for the Secretary of State in these proceedings before the Upper Tribunal, supports the appeal. She argues, in summary, that the tribunal may have come to the right conclusion on the facts but that it failed to make sufficient findings as regards the test for the lower rate mobility component. She adds that Tescos was a familiar place for the appellant; the tribunal venue was not familiar but he came by taxi; and visits to London clinics were always accompanied. She therefore proposes that I allow the appeal, set the decision aside and direct a re-hearing. Mrs Caroline Davies, the appellant’s CAB representative, naturally agrees.

9. I therefore conclude that the FTT’s decision involves an error of law for the reasons outlined above. I set aside the FTT’s decision, which now has no effect, and direct a re-hearing before a new tribunal.

Directions and guidance for the new First-tier Tribunal

10. There will need to be a fresh hearing of the appeal before a new FTT. Although I am setting aside the FTT’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether or not the appellant is entitled to DLA. That is a matter for the good judgement of the new tribunal. That tribunal must review all the relevant evidence and make its own findings of fact. 

11. In doing so, the new FTT will have to focus on the appellant’s circumstances as they were in July 2011, and not his position either today or as at the date of the new FTT hearing, more than 18 months later. He may be better, worse or the same. However, the law says that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998).

12. This may perhaps also be a reason for the District Tribunal Judge (who makes directions for the re-hearing of this appeal) to consider making a request to the appellant’s GP for copies of medical notes for the relevant period. This may provide further relevant information to supplement the medical evidence already available. However, the decision on whether such further evidence is required is best left to the good judgment of the District Tribunal Judge concerned.

13. The new tribunal should also bear in mind the guidance in the decision of the Tribunal of three Social Security Commissioners in R(DLA) 3/06. As Mrs Camponi acknowledges, the previous tribunal appears to have assumed that the absence of a clear diagnosis meant that the appellant could not meet the criteria for an award of DLA. As she adds, “At no stage have the Tribunal said that the claimant did not have the disabilities but they have not made adequate findings about the restrictions if any on the claimant’s ability to self care and mobility within the terms of the legislation.”

14. There is one final matter I should mention about the re-hearing. Mrs Camponi has helpfully pointed out that the appellant has made a further but also unsuccessful new claim for DLA from 19 March 2012. This new claim was disallowed on 8 May 2012. The new tribunal that rehears this appeal will therefore understand that it will be considering the question of the appellant’s entitlement (if any) for a closed period of about 9 months, starting on 21 June 2011 (the date of the original claim) and ending on 18 March 2012 (the day before the new claim).

Conclusion

15. I conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)). My decision is also as set out above.

16. I also simply repeat, for the record, that the fact that this appeal to the Upper Tribunal has succeeded should not be taken as any indication either way as to the likely outcome of the re-hearing before the First-tier Tribunal.

Signed on the original Nicholas Wikeley

on 13 November 2012 Judge of the Upper Tribunal