Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No: CDLA/227/2013

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright

DECISION

The Upper Tribunal allows the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Fox Court on 8.02.12 under reference SC242/11/06234 involved an error on a point of law and is set aside.

The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.  

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

DIRECTIONS

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

(1)            The new hearing should be at an oral hearing.

(2)           The appellant is reminded that the tribunal can only deal with his situation as it was down to 17.01.11 and not any changes after that date.

(3)           If the appellant has any further evidence that he wishes to put before the tribunal this should be sent to the First-tier Tribunal’s office in the Sutton Appeals Service Centre within one month of the date this decision is issued.

(4)           The First-tier Tribunal should have regard to the points made below.

REASONS FOR DECISION

1.                This is an appeal by the claimant from a decision of the Fox Court First-tier Tribunal (SEC) dated 8^th February 2012. I will refer to this from now on as “the tribunal” and the claimant as the “appellant”. The tribunal allowed the appellant’s appeal from the Secretary of State for Work and Pension’s decision of 17^th January 2011. The Secretary of State’s decision of that date was to the effect that the appellant was not entitled any rate of either component of Disability Living Allowance (“DLA”) from and including 20^th November 2010. The tribunal awarded the appellant the lowest rate of care component only from 20.11.10 for an indefinite period.   

2.               Permission to appeal to the Upper Tribunal was refused in the first instance by District Tribunal Judge Pearson on 22 November 2012.  That, if I may say so, seemed a surprising decision given what, to my mind at least, are the very considerable inadequacies in the tribunal’s reasoning.  Given these inadequacies I gave permission to appeal on 18^th February 2013.  I said this:

“The grounds of appeal put forward on behalf of [the appellant] (as to the adequacy of the tribunal’s reasoning generally) are, in my judgment, strongly arguable.  A short and seemingly protective essay on what the law ought not to require from a statement of reasons arguably has no place in a statement of reasons.  More importantly, however, the reasoning here very arguably consists of no more than assertion and very brief findings of fact for which no explanations are given”.

3.               Given my views on the strong merits of the appeal, I directed both parties to the appeal to inform the Upper Tribunal within one month of the date on which the my direction were sent to them whether they had any objection to the decision of the First-tier tribunal being set aside solely on the above grounds, and to the Upper Tribunal referring the case for re-determination by a differently constituted First-tier tribunal.

4.               Both parties have agreed with this proposal. In these circumstances, I can give my reasons for allowing the appeal very briefly.

5.               In my judgment it is manifest that the reasons given here are inadequate.  Beyond the short essay on what constitutes adequate reasons (to which I will return shortly), the statement of reasons does no more than tell the reader the appellant’s age, that he “suffers with  a number of medical conditions”, that he attended the hearing and gave evidence, that the tribunal considered all the matters very carefully,  that “he should be able to [walk – this word is missing from the statement] repeatedly for a distance of at least 200m”, that he could not prepare a cooked main meal for himself and that he required attention from another person for a significant portion of the day (both of which findings were supported by “objective evidence”), but that none of the other grounds of entitlement to DLA were made out as “his own evidence to the contrary is not accepted and is not supported by objective evidence”).  This is all the statement tells the reader.

6.               Without wishing to appear too harsh the reasoning here seems no more than a ritual incantation of the statutory tests for each component of DLA with the reasoning for rejecting any wider entitlement  compressed into the single phrase “his own evidence to the contrary is not accepted and is not supported by objective evidence”. That, however, fails to explain what the objective evidence was or why the appellant’s evidence was not accepted. 

7.               On any view of adequacy of reasons, explaining why a person’s evidence was not accepted is fundamental.  The appellant’s claims in the claim pack were significant and detailed, and needed to be answered by the tribunal. Moreover, it is entirely unclear which the objective evidence was that the tribunal was relying on as not supporting the appellant’s evidence.  For example, on page 37 the appellant referred to having flashbacks at night due to his severe depression and post traumatic stress disorder, and as a result he had night sweats and needed to be clamed down at night. As far as I can see all of this evidence was supported by the medical evidence, and neither the consultant cardiologist (p. 69) nor the appellant’s GP (page 78) addressed night care needs. I therefore cannot see why the objective evidence did not support these claims.  It may be that this evidence would not satisfy the stringent night care conditions – because, for example, any care required was neither repeated nor prolonged – but that is not the reasoning the tribunal gave. Given the paucity of the reasoning here I do not consider it is too harsh to say the tribunal’s conclusion here simply makes no sense.

8.               Given the very considerable inadequacies in the reasoning, it is particularly unfortunate that the statement of reasons spent nearly a whole page addressing what, in the tribunal’s view, the law requires in terms of adequate reasoning.  This, however, is wholly irrelevant to the key function of a statement of reasons: telling the parties why, on the evidence, an award was made or not made.  Not only is it an irrelevant and thus unnecessary exercise, and therefore should not appear in any statement, it comes across here as being a protective gesture and one designed to insulate poor reasoning on the fundamentals. The case-law referred to in this part of the statement is also selective and fails to set out some of the key decisions on reasoning relevant to social security. The classic is R(A)1/72 at paragraph [8], where Commissioner Temple addressed the obligation in the context of a conflict of evidence (which on the tribunal’s reasoning was the case here):

“The obligation to give reasons for the decision in such a case imports a requirement to do more than only to state the conclusion, and for the determining authority to state that on the evidence the authority is not satisfied that the statutory conditions are met, does no more than this.  It affords no guide to the selective process by which the evidence has been accepted, rejected, weighed or considered, or the reasons for any of these things.  It is not, of course, obligatory thus to deal with every piece of evidence or to over elaborate, but in an administrative quasi-judicial decision the minimum requirement must at least be that the claimant, looking at the decision should be able to discern on the face of it the reasons why the evidence has failed to satisfy the authority.  For the purpose of the regulation which requires the reasons for the review decision to be set out, a decision based, and only based, on a conclusion that the total effect of the evidence fails to satisfy, without reasons given for reaching that conclusion, will in many cases be no adequate decision at all”.  

For the reasons give above, the reasoning given in this case fell well short of this standard.

9. It is to be hoped that in the future First-tier Tribunals will not feel the need to expend unnecessary time and energy on explaining what an adequate statement of reasons should contain.

10. It is for all these reasons that the tribunal’s decision dated 8.02.12 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber).  The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether his appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.

 (Signed) S. M. Wright

Judge of the Upper Tribunal

Dated 16^th July 2013