Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/3710/2012

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, who has rheumatoid arthritis, slipped discs, white finger, irritable bowel syndrome and a heart condition, was in receipt of higher rate mobility component and middle rate care component from 20 August 2003 to 19 August 2011.  He appealed against the decision made on his renewal claim of 13 May 2011 awarding him only lowest rate ‘cooking test’ care component and at a hearing on 1 June 2012 the tribunal not only dismissed the appeal, but also removed the award of lowest rate care component.  The claimant applied for permission to appeal on a number of grounds and on 3 December 2012 I gave permission because I considered that entitlement to the cooking test was not an issue raised by the appeal and because it was not clear from the statement of reasons why the tribunal exercised its discretion to consider that issue.

2. In a submission supporting the appeal dated 19 February 2013 the Secretary of State’s representative has submitted that entitlement to care component was an issue in the appeal raised by the claimant’s grounds of appeal to the tribunal, but in CDLA/1000/2001 it was held that the question whether an issue “is raised by the appeal” is to be determined by reference to the substance of the appeal and not just by the wording of the letter of appeal.  Although the submission prepared by the claimant’s representative contained some references to case law relevant to care component, the factual content of the submission related solely to higher rate mobility component and the tribunal did not in fact deal expressly with care component, except to the extent of removing the earlier award.  I would therefore hold that entitlement to lowest rate care component was not an issue raised by the appeal and that the tribunal therefore erred in law by failing to give reasons for their decision to consider that issue-see paragraph 5 of DH v Secretary of State for Work and Pensions [2012] UKUT 330(AAC).

3. Even if, however, entitlement to lowest rate care component was an issue raised by the appeal, I am not satisfied that the tribunal acted fairly in the way in which it dealt with the issue.  It is of course true that the tribunal made it perfectly clear to the claimant and his representative that they had power to remove the award of care component.  However, in CDLA/884/2008 the Commissioner pointed out that it was not necessarily enough to give a claimant an opportunity to withdraw his appeal: as had been said in R(IB) 2/04 the claimant had to be given sufficient notice to enable him to prepare his case on the new issue.  For that reason, the Commissioner held (paragraph 10) that tribunals should refrain from making decisions less favourable to claimants than the decisions being challenged, except in the most obvious cases (e.g., where the evidence is overwhelming or the facts are not in dispute and no element of judgment is involved or where the law has been misapplied by the secretary of State), or after an appropriate adjournment.

4. The Commissioner’s observations with regard to the need not to take a claimant by surprise apply equally whether or not the issue which the tribunal has it in mind to consider is technically one which is raised by the appeal.  It is clear from the evidence in this case that the question of whether the claimant satisfied the ‘cooking test’ was not straightforward.  There was evidence that the claimant needed some form of support when cooking and that he often burned himself when doing so, and the claimant has stated that he told the tribunal that he had cut himself when chopping food.  There was therefore clearly an element of risk to the claimant from cooking and in my view fairness required that the claimant and his representative should at the very least have been given an opportunity of preparing his case on lowest rate care component before it was considered by the tribunal.  I can find no indication that the claimant was offered an adjournment to prepare his case on the ‘cooking test’, or to discuss with his representative whether the risks of losing lowest rate care component outweighed the benefits of proceeding with the appeal in the hope of being awarded higher rate mobility component.

5. I therefore agree with the Secretary of State’s submission that the tribunal’s decision was wrong in law and accordingly set it aside.  The case will have to be re-determined in its entirety by a new tribunal, but as the Secretary of State’s representative has pointed out the tribunal will not be bound in any way by any previous award. 

E A L BANO

14 August 2013