IN THE UPPER TRIBUNAL Case No  CDLA/2252/2012

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision: 

I have considered the claimant’s daughter’s request for an oral hearing of this appeal but have decided not to hold one.  This is because the matter will be better considered afresh by the First-tier Tribunal, which sits with a medical member and a disability qualified panel member.  So far as the point of law goes, the Secretary of State supports the appeal and I can decide it in the claimant's favour without any further steps in the Upper Tribunal being required.

The appeal is allowed.  The decision of the First-tier Tribunal sitting at Bolton on 30 April 2012 under reference SC122/11/02790 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 8 and 9 of the Reasons.

REASONS FOR DECISION

1. The case illustrates one particular aspect of the duty to give reasons.  It arises because the operation of the so-called “special rules” is different in relation to each of the care and mobility components of disability living allowance (“DLA”).

2. The claimant, a man aged 82 at the date of the DWP’s decision under appeal, previously had what he described as a lifetime award of the mobility component of DLA dating back to at least 1992.  Life awards as such no longer exist:  they were converted to awards for an indefinite period by the Welfare Reform and Pensions Act 1999.  The protection for a life award had been removed before that, by the Social Security Act 1998.

3. In 2008 the existing indefinite award of DLA was superseded when the claimant was diagnosed with oesophageal cancer and he was then awarded DLA under the “special rules” for people with life-threatening conditions.  The award was made for a three year period both in respect of the higher rate of mobility component and the highest rate of care component.  The claimant responded well to his cancer treatment and in due course a decision had to be taken on renewal of his DLA claim.  On 8 July 2011 he was refused both components of DLA at any rate.  His appeal was dismissed by the First-tier Tribunal on 20 May 2012.  His challenge, brought with the help of his daughter, is to the non-renewal of the mobility component.  I gave permission to appeal.

4. In considering whether the tribunal’s decision was in error of law, one needs to start with the 2008 decision.  While one can appreciate the context of decisions based on the special rules, there was no legal reason why the mobility component had to be restricted to three years.  It could have continued for an indefinite period, as all that is prohibited by section 71(3) of the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”) is an award of the two components for different fixed periods.  However no appeal against the 2008 award was made and it had become far too late to seek to do so subsequently. 

5. It is however important for present purposes to consider what was implicit in the 2008 award.  The effect of the special rules is not the same in relation to the care component as to the mobility component.  In relation to the care component, a person who falls within the special rules is deemed to meet the “day” and “night” conditions and so to be entitled to the highest rate of the care component:  see 1992 Act, section 72(5).  In the case of mobility component however the effect of falling within the special rules is only that the three month prior qualifying period is rendered inapplicable and the requirement for the condition to be likely to continue for a six month period is modified:  see section 73(12).

6. It is therefore a necessary part of the Department’s decision in 2008 that the Department considered that the claimant actually met the requirements for mobility component in terms of being virtually unable to walk, not that he was to be treated as having done so by virtue of the special rules.  The 2012 tribunal’s decision did not address this distinction at all and consequently failed to engage with the question of how likely it realistically was that the claimant’s apparently long-impaired walking ability, which was due to a previous accident and not linked to his cancer, had improved between 2008 and 2011, particularly in the face of evidence (page 83) that he had additionally developed rheumatoid arthritis in 2009. 

7. In R(M) 1/96 it was held that on a renewal claim, if a tribunal was departing from the decision of the previous decision‑maker it should be prepared to give an explanation of why it was doing so unless it was reasonably obvious.  This, for the reasons given above, the tribunal failed to do.

8. Because the tribunal failed to test the evidence against the implications of the previous award, I am not content to rely on its findings of fact, so the case will need to be remitted.  I direct therefore that the question of whether the claimant satisfies the conditions of entitlement for DLA is to be looked at by way of a complete re-hearing in accordance with the legislation and this decision.  The claimant’s daughter has made a number of points on the evidence in the papers she has sent to the Upper Tribunal and she will be able to make those , if she sees fit, to the First-tier Tribunal to whom the case is remitted.

9. Unless otherwise directed, the claimant or his representative must ensure that any further written evidence is filed with the First-tier Tribunal no less than 21 days before the hearing date.  The tribunal will need to make full findings of fact on all points that are put at issue by the appeal.  If the tribunal rejects the claimant’s evidence, it must provide a sufficient explanation why it has done so and must give adequate reasons for its conclusions.  This will extend to providing an explanation (if such proves to be the case) why the tribunal is reaching a different conclusion from the previous award.  The tribunal must not take account of circumstances that were not obtaining at the time of the decision under appeal, which was taken on 8 July 2011- 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.

10. While it is not a matter for me to direct, it is suggested that the claimant should attend the re-hearing.

11. I know that the claimant’s daughter is concerned at the implications of the loss of the mobility component for her father’s ability to continue to run the car on which he and his wife (who is also disabled) rely.  If she wishes to apply for the case to be given priority for re-listing in the First-tier Tribunal, she should write to the First-tier Tribunal, explaining why.  It will be for a judge of the First-tier Tribunal to decide whether or not to accede to that application.

12.  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

11 March 2013