Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No. CDLA 2030 2012 

ADMINISTRATIVE APPEALS CHAMBER

SB v SSWP (DLA)

DECISION

The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. With the consent of both parties, I replace the decision of the tribunal with the following decision:

Appeal dismissed. The decision of the Secretary of State awarding the appellant the lowest rate of the care component only of disability living allowance from and including 10 06 2010 is confirmed.

For the avoidance of doubt, the effect of this decision is to reinstate the decision by the Secretary of State to award the lowest rate of the care component of disability living allowance but not any higher rate of that component or any mobility component to the appellant. It sets aside the decision of the First-tier Tribunal stopping the award of the lowest rate of the care component.

This decision is made under the authority of the Tribunals, Courts and Enforcement Act 2007 section 12(2)(b)(ii). 

REASONS FOR DECISION

1 The appellant had a serious road traffic accident in 1993 which left him with extremely serious short term effects and long term disablement. He was awarded the lower rate of the mobility component and highest rate of the care component in 2004 on an indefinite basis. This was superseded from 10 06 2010 by a decision awarding only the lowest rate of the care component.

2 The appellant appealed against the reduction. Having heard the appeal, the tribunal went further and stopped the award of the lowest rate of the care component. There is nothing in the tribunal record to indicate that ether party was made aware that the tribunal had this in mind and gave proper, or any, notice of its intentions. I say “both parties” because the Secretary of State was represented. In particular, there is nothing in the record of proceedings to indicate that the tribunal expressed concern to the presenting officer, or asked for an explanation, about why the Secretary of State kept the lowest rate of the care component award in place. This is relevant as the Secretary of State had confirmed the view that the lowest rate of the care component should remain in place in an additional submission to the tribunal made after new medical evidence had been received by the tribunal. The evidence included contemporary medical evidence that one of the appellant’s arms was “functionally useless”.

3 This is clearly a case where the tribunal should have explained to both parties that it was considering reducing the appellant’s award further. In particular, as the appellant was unrepresented at the hearing, the tribunal should have explained to the appellant the consequences to him of the appeal going ahead if it had that in mind. Given that both parties were present, the tribunal should have given an opportunity for them to discuss the issue before the appeal went ahead or for the appellant to reflect on whether he should withdraw the appeal or should ask for an adjournment. There is no indication in the record of proceedings or the statement of reasons that the tribunal did any of this beyond the cryptic phrase “all to be looked at again”.

4 There is a fundamental issue of fairness here. An appellant should not be “ambushed” at a hearing with a new issue by the other party or by the tribunal. The parties were entitled to know that the tribunal was considering the removal of benefit that was not in dispute between them so that they could make submissions and give evidence on the matter. That may require an adjournment so that further evidence can be obtained or advice given by an absent representative. Or it may suggest a timely withdrawal of the appeal by the appellant. As is often the case, this appellant was represented but the representative was not present.

5 The issue of the continuing award of the lowest rate of the care component is particularly important here. This is because of the clear evidence on which the appellant was entitled to rely, and which was accepted for the Secretary of State, that he reasonably needed help preparing meals. This is directly stated in the report from the general practitioner. It was also indicated in the report of the examining medical practitioner prepared for the Secretary of State at that time. It is consistent with the ongoing problems that the appellant has with his left hand, arm and shoulder.

6 The Secretary of State had left the award of the lowest rate of the care component in place. There is contemporary independent evidence to support that. But the appellant was not given any clear indication that the tribunal was examining this issue or the consequences to the appellant if it did so. That aspect of the First-tier Tribunal decision must be set aside on grounds of fairness.

7 I do not consider that the tribunal erred on the main issue before it. This was the appeal against the supersession decision taken for the Secretary of State ending the award of mobility component and reducing the award of care component. That was plainly fully before the tribunal, so no fairness issues arise. No attempt was made to backdate the change of award. I am satisfied that it could be justified either on the grounds of an original mistake of fact or on a subsequent change of circumstances. On either basis the Secretary of State was not seeking to recover any overpayment. So no issue of failure to disclose arises. The tribunal has, in my judgment, looked at these aspects of the appeal closely. It had before it not only the appellant but also a considerable weight of medical evidence stretching back to the immediate effects of the accident in 1993. The tribunal gave clear reasons why it did not consider the appellant to be entitled to the lower rate of the mobility component or to the middle rate of the care component or highest rate of the care component from the date decided for the Secretary of State.

8 The appeal is allowed, limited to the question of the lowest rate of the care component. The Secretary of State was given a draft of these reasons and has agreed to the decision of the First-tier Tribunal being set aside and the decision of the Secretary of State being reinstated. I therefore replace the decision of the First-tier Tribunal on that basis.

David Williams

Upper Tribunal Judge

13 12 2012

[Signed on the original on the date stated]