IN THE UPPER TRIBUNAL Case No  CE/3378/2011

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at London North on 5 April 2011 under reference SC102/11/01059 involved the making of an error 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 paragraphs 13-17 of the Reasons.

REASONS FOR DECISION

1. On 19 October 2010 the DWP decided that the claimant did not meet the test of limited capability for work.  6 points were awarded, based on continence difficulties.  The claimant though had also claimed points-scoring difficulties under the descriptors then in force in relation to walking, sitting and standing, bending or kneeling, speech and consciousness.  She also had some mental health difficulties.

2. The claimant, whose first language is Turkish and who speaks very little English, elected to have her appeal to the First-tier Tribunal (FtT) dealt with on the papers.  The tribunal recognised that it nonetheless had a discretion whether to proceed in such a manner and no complaint is made in respect of its decision to do so.  The FtT on 5 April 2011 upheld the DWP’s decision and on 21 November 2011 refused permission to appeal.

3. At the claimant’s request, I held an oral hearing of her application for permission to appeal on 14 June 2012 at which she was assisted by an interpreter.  I gave permission to appeal.  Written submissions have since been received both from the Secretary of State and from solicitors subsequently instructed by the claimant.

4. As part of her application to the Upper Tribunal, the claimant attached a copy of a letter notifying her of an increase in disability living allowance.  From that it appeared that she had been awarded the middle rate of the care component  “for help with personal care” and the lower rate of the mobility component, in each case from 9 March 2010 indefinitely.  While one does not know the exact date of the DLA decision, it is evident that the DWP accepted that as at the date of the ESA decision, the claimant had a level of disability sufficient to qualify her for the rates of DLA awarded.

5. None of this was known to the FtT and absolutely no criticism attaches to it.  It cannot be an error of law for the FtT to fail to address evidence when it was not before it.  Further, while I accept that the FtT’s jurisdiction is inquisitorial, there was nothing here which ought to have triggered a duty on the FtT to investigate further, effectively on the off-chance that a person claiming ESA might have an existing award of DLA which neither party had seen fit to mention.

6. Whether there was an error of law on this aspect depends therefore on whether the Secretary of State was under a duty to disclose the information.  Evidence in relation to one benefit may be material in connection with another benefit, as long as due caution is exercised, particularly in recognising the implications of the differing legislative frameworks: see for instance LD v Secretary of State for Work and Pensions [2009] UKUT 208 (AAC) and DR v Secretary of State for Work and Pensions [2010] UKUT 210 (AAC).  On the face of it, the award of DLA suggested inter alia that, for instance if it was the day condition that was met (which I do not know), the claimant was so severely disabled physically or mentally that by day she required from another person frequent attention throughout the day in connection with her bodily functions: cf. Social Security and Contributions and Benefits Act 1992 s 72(1)(b).  Whether the origin of that need was physical, mental or a combination of the two, the fact of the award (operative from only a few months prior to the ESA decision) and the evidence underpinning it were clearly capable of having probative value.

7. In SC v LB Islington (HB) [2011] UKUT 490 (AAC) Judge Jacobs was commenting on the principles applicable to local authority in a housing benefit case.  There is no reason why the principles are not equally applicable to the Secretary of State.  He observed:

“17. The local authority is a party to the proceedings before the tribunal. However, it is disinterested in the outcome of the case in that its function is not simply to defend its decision. Its function is to assist the tribunal to ensure that the correct decision is reached on the evidence. In order to do that, the tribunal must have all relevant documentation before it. And it is the duty of the local authority to provide all relevant documentation in its possession.

18. The officer who prepares the submission to the tribunal has to make a judgment about what to include. The officer should provide all material relevant to the decision under appeal and, in particular, to the   issues raised by the claimant in the appeal. Extraneous material is of   no benefit to anyone and may be confusing. However, it may not be completely clear whether particular documents will or will not be relevant to the hearing. If in doubt, officers for a local authority should err on the side of caution and include anything that might be relevant to the hearing.

19. If a local authority withholds information that is relevant to an appeal, it may be in breach of a principle analogous to natural justice, which was recognised by Lord Bridge in the House of Lords in Al- Mehdawi v Secretary of State for the Home Department [1989] 3 All ER 843 at 848. See also R(CS) 1/99 at paragraph 8. And that alone is sufficient to justify a decision being set aside.”

8. The representative of the Secretary of State in the Upper Tribunal proceedings submits as follows:

“11. I submit that it appears from the submission before the First-tier Tribunal that the decision maker and submission writer were probably not aware of the DLA entitlement. The way the specialist WCA work is   usually segregated from the routine benefit work in the local DWP office makes it un-necessary for the WCA staff to interrogate the benefit systems to see which ESA allowance  (if any) or other benefits are in payment to any individual claimant. The information might turn up in some isolated ad hoc fashion for an individual case but more often this is likely to come from the claimant if at all.  I submit that it appears reference to DLA entitlement does not arise until after the   First-tier Tribunal hearing on the papers…The statement of reasons…correctly does not mention DLA as this is a fact the tribunal were not aware of when making their decision.

12. I therefore submit there has not been a breach of natural justice as result of the tribunal’s lack of knowledge about a DLA award.”

9. I do have some difficulty in following the logic here. The fact that the FtT did not know about DLA means the tribunal cannot be faulted for failing to deal with evidence (see above).  If though the natural justice point arises rather in the breach of the duty of the respondent to provide all material relevant to the decision under appeal (as I have held the DLA award to be), then the tribunal’s lack of knowledge is no answer.

10. Nor is an answer to be found in the internal working arrangements of the DWP.  Though it would not in any event necessarily provide an answer, I note that it is not suggested that someone working on WCA cases could not ascertain whether a person was receiving DLA- indeed, the contrary is implied. It would seem prudent once an appeal has been received, if not before, for the benefit systems to be interrogated to check for material evidence of this type, if similar cases are to be avoided.

11. As it is, the First-tier Tribunal hearing will have to be re-run, with the benefit of whatever material is available about the DLA award and the evidence on which it was based.

12. As I am setting aside the decision, I need not deal with any other errors of law there may have been, which will be subsumed in the re-hearing. Indeed, it is preferable that I do not deal with them, as all would involve making observations on the facts, which will now better be left to the new tribunal.

13. I direct therefore that the question of whether the claimant satisfies the work capability assessment is to be looked at by way of a complete re-hearing in accordance with the legislation and this decision.

14. The Secretary of State must within one month of the date of the letter sending out this decision file with the First-tier Tribunal a revised or supplemental submission including such evidence as is available relating to the award of DLA to the claimant and the evidence underpinning it.  To the extent that it is not available, an explanation must be provided of what has become of it.

15. Within 14 days of the date of the letter sending her the Secretary of State's revised or supplemental submission under [14], the claimant must notify the First-tier Tribunal whether or not she wants an oral hearing of her appeal and, if she does, whether she needs an interpreter.  While it is not a matter for me to direct, it is suggested that the claimant should attend the re-hearing.

16. Within a further 14 days, the claimant must send any further evidence on which she wishes to rely to the First-tier Tribunal.

17. The tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal, which was taken on

19 October 2010- see section 12(8)(b) of the Social Security Act 1998 - but may have regard to subsequent evidence or subsequent events for the purpose of drawing inferences as to the circumstances obtaining at that time: R (DLA) 2/01 and 3/01.

18. These directions are subject to any further directions which may be given by a District Tribunal Judge.

19. The decision on the re-hearing is a matter for the First-tier Tribunal and no inference as to the outcome should be drawn from the fact that this appeal has been allowed on a point of law.

CG Ward

Judge of the Upper Tribunal

7 March 2013