Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No: CDLA/3844/2012

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 Barnsley on 20 August 2012 under reference SC061/12/00205 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 made by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

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

(2)           The claimant is reminded that the tribunal can only deal with her situation as it was down to 23 February 2012 (though it is to be noted that the purported effective date for the change of circumstances is 15 September 2011) and not any changes after that date.

(3)           If the appellant has any further evidence that she wishes to put before the tribunal this should be sent to the First-tier Tribunal’s office in the Liverpool 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 unusual appeal, not because it is brought by the Secretary of State (though that is a relatively unusual occurrence), but because in effect it concerns a First-tier Tribunal (“the tribunal”) deciding on the facts that the claimant did not qualify for the higher rate of the mobility component (“hrmc”) of Disability Living Allowance (“DLA”) at the effective date of the decision before it but also deciding that that award should nonetheless continue.

2.               I set out the facts only in enough detail to explain the nature of the issue I have to decide. 

3.               The claimant (who is the respondent to this appeal but who was the appellant before the tribunal) had an award of the hrmc (no care component award is involved) of DLA for an indefinite period from and including 26 February 2010.  That award had been made to her by another First-tier Tribunal on 13 September 2010 (page 69) (“the first tribunal”). No record of proceedings or statement of reasons for that decision was or is available to show the evidence upon which the first tribunal made its awarding decision. 

4.               The Secretary of State then investigated the claimant’s award of the hrmc and superseded the tribunal’s decision making the award, removing the award on 23 February 2012 but with effect from 15 September 2011. The supersession was on the basis that the claimant’s circumstances had changed since 26 February 2010 such that by 15 September 2011 the award was no longer merited. The claimant appealed decision and it is the tribunal’s decision upholding that appeal which the Secretary of State now appeals to the Upper Tribunal.

5.               The tribunal found that the claimant  remained entitled to the hrmc for an indefinite period from 26 February 2010 because it was not satisfied there had been any change of circumstances to justify a supersession of earlier tribunal’s awarding decision. Pausing at that point, it might have been thought that what the tribunal had decided was that on the evidence before it the claimant remained virtually unable to walk as at 15 September 2011.

6.               However, that was not the tribunal’s reasoning. Its reasoning was twofold. First, it said that if was it making a decision on entitlement to the hrmc as at the relevant date “then it certainly would not have made an award of the mobility component, because this Tribunal would have found  that the appellant was not virtually unable to walk”. This finding was based on its findings, inter alia, that (i) the claimant at the material time was walking for about 10-15 minutes with no obvious limp and no walking aids, and (ii) was walking probably for a quarter of a mile on a regular basis to and from the shops at a fairly normal speed.  Second, however, the tribunal found that this evidence about walking was exactly what the claimant had told the first tribunal. Therefore, even if the first tribunal had been wrong to make the award in the first place, there had been no change of circumstances since that awarding decision had been made.

7.               In giving the Secretary of State permission to appeal against this decision  on 18 December 2012 I said this:

“I consider it is arguable that the First-tier Tribunal erred in law in uncritically accepting, or not reasoning out fully enough its acceptance of, [the claimant’s] evidence that she had presented the exact same evidence as to her walking ability to the 13.09.10 tribunal, in a context where it would arguably have been perverse for any award of the higher rate mobility component to have been made on that evidence. Given this context, and given the lack of any record of proceedings or statement of reasons from the 13.09.10 tribunal showing what had been said to it, it is arguable that the First-tier Tribunal ought to have examined more critically [the claimant’s] evidence to it that the evidence she gave to the 13.09.10 tribunal about her walking was the exact same as her evidence about her walking that she gave to the First-tier Tribunal on 20.08.12”

8.               The claimant’s response to the grant of permission to appeal has been to seek to reargue the factual merits of her case and contend that the case against her at the First-tier Tribunal was based on hearsay and supposition. Those points may be relevant to arguments made about whether her walking had improved by 15 September 2011, but they do not address the potential error of law I suggested the tribunal had made.

9.               The Secretary of State maintains his stance that the tribunal erred in law.  His case is that the tribunal erred in law in not considering an alternative supersession ground, namely whether the first tribunal’s decision had been made in ignorance of, or a mistake as to, a material fact. 

10.            I have no doubt in an appropriate case that a First-tier Tribunal can choose an alternative supersession ground from that put forward by the Secretary of State, subject of course to appropriate safeguards being put in place to ensure that that the appellant is not taken by  surprise and thus disadvantaged by such a change of tack. 

11.             However, I fail to see what difference this alternative supersession ground would have made here.  On the tribunal’s thesis the first tribunal didn’t get any facts wrong or mistaken: the first tribunal proceeded on the correct factual basis, according to this tribunal, that the appellant could walk for a quarter of a mile etc, and then (wrongly) awarded her the hrmc. There was, therefore, no material error of law in the tribunal not considering the ignorance of /mistake about a material fact ground for supersession.

12.            Where, however, I consider the tribunal did err in law was in the way I suggested when I gave permission to appeal. On the facts the tribunal found as to the claimant’s walking, it would in my judgment have been perverse in the true Wednesbury sense for any tribunal to have awarded the hrmc to the claimant. That may have been what happened with the first tribunal, but given its very great unlikelihood in my judgment the tribunal on 20 August 2012 had to do more than it did by way of critical examination of the claimant’s evidence that she had said the exactly the same thing to the last tribunal; bearing in mind that if true it meant that the first tribunal’s decision was perverse. Further or in the alternative, the tribunal erred in law in failing to reason out adequately why it accepted that the claimant had given the  exact same evidence to the first tribunal. These omissions meant that the tribunal erred in law and its decision must be set aside.

13.            I emphasise that on the facts the tribunal found about the claimant’s walking, this was not a marginal case where the first tribunal may properly have concluded that an award of the hrmc was merited.  There will be cases where matters are much more marginal, the evidence more finally balanced, and where as a consequence a first tribunal may well have been entitled as a matter of judgment to conclude that a person was virtually unable to walk (even though a second tribunal looking at a purported supersession of that awarding decision may not have made the same decision based on the same evidence), and where it is then very difficult to show a relevant change of circumstance. However, that is not the case here.  The evidence allegedly given to the first tribunal ought not to have led to any hrmc award being made, and although that may have been the case its intrinsic unlikelihood ought to have led the tribunal here, at the least, to have reasoned out more fully than it did why it accepted that the claimant gave the exact same evidence to the first tribunal.

14.            The tribunal’s decision of 20 August 2012 must, therefore, be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber).  The Secretary of State’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether the claimant’s appeal will succeed or fail on the facts before the new 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 15^th November 2013