Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/2390/2012

ADMINISTRATIVE APPEALS CHAMBER

Before E A L BANO

Decision:  My decision is that the decision of the First-tier Tribunal involved the making of an error on a point of law. I set aside the tribunal’s decision and remit the case for hearing before a differently constituted tribunal.

REASONS FOR DECISION

1. The claimant, a vulnerable person with a number of serious physical and mental health conditions, appealed against a decision made on 5 August 2011 rejecting his claim for each component of disability living allowance.  On 24 February 2012 the claimant’s solicitors sent the tribunal a detailed and carefully reasoned seven page letter claiming lower rate mobility component on the basis of the claimant’s vulnerability and anxiety when out of doors, and middle rate care component on the basis of his inability to cope on his own at home and his propensity to harm himself.  Confirmation of the claimant’s medical conditions was contained in two GP reports which were later sent to the tribunal.  However, neither the claimant nor his representative attended the hearing.

2. The tribunal’s very brief reasons for dismissing the appeal rejected the claim for lower rate mobility component on the basis of the GP’s statement that the claimant attended the gym regularly, and the claim for middle rate care component because the claimant was no longer receiving treatment for depression, and because on his own evidence he slept for 12-14 hours a day.  Following the district judge’s refusal to admit the application because of possible lateness, I gave permission to appeal on 11 September 2012 because I considered it arguable that the tribunal’s reasons did not adequately address the issues raised in the claimant’s solicitors’ letter to the tribunal.

3. The Secretary of State has supported the appeal in a submission dated 24 January 2013 and I have no doubt that it must be allowed for inadequacy of facts and reasons.  In relation to lower rate mobility component, the solicitors’ letter to the tribunal referred to the claimant’s fears resulting from an attack in 1993, which left him unconscious (and later attacks), the unpredictability of his depression and his attempts at suicide.  None of this is even mentioned by the tribunal.  The claimant no doubt knows the way to the gym, so that his visits there (which form part of his therapeutic regime) have nothing to do with any need for him to be accompanied on routes with which he is not familiar.  Similarly, in dealing with middle rate care component, the tribunal made no reference to the claimant’s attempts at suicide, or the evidence from the GP that because of the claimant’s poor memory and lack of concentration he frequently has accidents in the home.  As the Secretary of State’s representative has pointed out, the tribunal also appears to have overlooked the fact that the claimant was still on anti-depressant medication.  I agree as well with the representative that the fact that the claimant stays in bed for 12-14 hours a day suggests a severe depressive condition, consistent with a possible need for attention, rather than being a reason for holding that he has no care needs.

4.  Hearings on the papers in cases of this kind very often present tribunals with difficult challenges.  However, in this case there was uncontested medical evidence which would have allowed the tribunal to make reasoned findings of fact on which to base an assessment of the nature and extent of the claimant’s care needs.  The tribunal failed to make the findings of fact which were needed to decide the extent of the claimant’s need for supervision and attention, and gave reasons for dismissing the appeal which had no logical bearing on the issues which they had to decide.

5.  For those reasons, I allow the appeal, set aside the tribunal’s decision and remit the case to the First-tier Tribunal for rehearing before a fresh tribunal.

E A L BANO

25 April 2013