IN THE UPPER TRIBUNAL                                 Case No  CE/4188/2013

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Wakefield on 13 August 2013 under reference SC008/12/07352 involved the making of an error on a point 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 paragraph 12 of the Reasons.

REASONS FOR DECISION

1. Both the claimant’s representative and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing.  That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail.  I need only deal with the reason why I am setting aside the tribunal’s decision.

2. I have set the tribunal’s decision aside, because in her letter of appeal against the DWP’s decision of 30 August 2012 that she did not have limited capability for work, the claimant had written (among other things) that:

            “Last year I attended a tribunal, in Wakefield, for disability living       allowance.  I was awarded, for the third time (since 2006), high rate        mobility and middle rate care, until 2016.”

Despite this having been put so firmly in issue, the DWP’s submission provided no details of the DLA awards.  This was so, despite the obligation under rule 24(4) of the First-tier Tribunal’s rules of procedure to provide “copies of all documents relevant to the case in the decision maker’s possession, unless a practice direction or direction states otherwise.”  The claimant attended the hearing with a supporter, but without representation.  The tribunal’s reasons were silent as to DLA and I can find nothing in the record of proceedings to suggest that the issue was discussed.

3. The claimant was awarded 0 points by both the decision maker and the tribunal.  She had, however, reported difficulties  in relation to areas which included mobility and various activities of daily living that were affected by her physical and mental conditions.

4. What, if anything, was the relevance of the DLA award?  In ML v SSWP [2013] UKUT 174 (AAC); [2013] AACR 33 Judge Jacobs said:

            “18. Finally, I need to deal with Mrs L’s argument on her award of the         mobility component of disability living allowance at the higher rate. This is evidence that, at the time of the award of disability             living allowance, Mrs L had limited mobility sufficient to qualify for the        mobility component at the higher rate. However, without more   information it is impossible to relate it to the specific terms of the             activity of mobilising in Schedule 2. That would require more            evidence        about how her mobility was restricted and at what point it would give             rise to significant discomfort or exhaustion. And if that      evidence is    necessary, the question arises: what value does the fact that the     claimant has an award of the mobility component add     to her case? It is       possible that in many, if not most, cases the answer will be: little or nothing. In other words, it is the evidence that matters, not the award.”

5. I respectfully agree with Judge Jacobs that the mere fact of an award of the higher rate of the mobility component of DLA may not necessarily tell one much about whether the ESA mobility descriptors are fulfilled.  To take one obvious example, the ESA descriptor includes consideration of ability to mobilise using a wheelchair, whereas the higher rate of mobility component does not.  But I do not read Judge Jacobs’ remarks as providing any encouragement that the award of DLA can simply be disregarded; rather, as he says, it is the evidence that matters, not the award.  In my view the existence of the award is a catalyst for consideration of the potential relevance of the evidence behind it.  The significance of the decision is in my view correctly summarised in the headnote in the reported version:

            “The fact that the appellant had an award of DLA of the higher rate             mobility component cannot of itself be directly related to the mobilising       activity in Schedule 2; more evidence was needed about how her          mobility was restricted and at what point it gave rise to significant     discomfort or exhaustion (paragraph 18).”

6. In the present case, the claimant’s letter of appeal was enough to show (a) that she had been thought to have mobility difficulties and supervision or attention needs sufficient to meet the conditions for the respective DLA components; (b) that this had been so on three occasions, so was not based on a one-off decision (which might have been unduly generous); (c) that the third such award had been made by a tribunal, which will have been persuaded to do so on evidence; and that (d) the tribunal, which had in 2011 made an award lasting until 2016 had not had significant concerns that the claimant’s condition was not liable to continue for a reasonable period.

7. The evidence behind those awards, particularly the third of them, was potentially relevant and insofar as it was still available, ought to have been produced.  Under rule 24 the DWP ought to have included it and, when it failed to do so, the tribunal ought to have directed its provision and taken it into account in its decision.

8. In a submission in the present appeal, the Secretary of State's representative said:

            “13. In 2013 UKUT 174 (AAC) the claimant had the higher rate mobility      component of DLA.  The Judge held that it is the evidence that matters,      not the award and that in many, if not most, cases the award of the       mobility component is of little or no value to a claimant’s ESA case.

            14. However, the claimant had also been awarded the middle rate care      component of DLA.  The care component is for those needing help with     bodily functions or with those needing supervision.  It is not known on    what basis this award was made. This presented the tribunal with             conflicting evidence.  On the one hand the evidence suggested that the    claimant was able to perform activities of daily living and in contrast             she gave evidence that she had been awarded the care component of   DLA.  The tribunal made no findings in relation to the DLA at all and in      this respect, I submit that the tribunal erred in law.”

9. I read the submission-writer’s remarks that “it is not known on what basis the award was made” as being directed to the state of the evidence before the First-tier Tribunal, not as saying that nothing is or can be known about the basis of the award, for instance from interrogation of the DWP’s computer records. 

10. The concession at the end is well made.  The evidence which had led to a relatively recent award of the care component might, even though there is again no direct correlation between the tests for the two benefits, have been material to whether ESA descriptors were fulfilled.  But I consider that in paragraph 13 the submission was too ready to dismiss the significance of the DLA insofar as it related to mobility component, on a mistaken reading of the ML decision.  In relation to both components, the evidence behind the DLA award was capable of proving material to what the ESA tribunal had to decide.

11. I do not need to deal with any other error on a point of law that the tribunal may have made.  Any that was made will be subsumed by the rehearing.

12. I direct that the Secretary of State must, within one month of the date of the letter sending out this decision, file with the First-tier Tribunal such evidence as is in his possession or control in relation to the awards of DLA made to the claimant.  If the claimant has any evidence about the awards of DLA other than that provided by the Secretary of State, she must send copies of it to the First-tier Tribunal so that it is received at least 14 days before the hearing.  The tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.  While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.  Adequate findings of fact must be made about the claimant’s physical and mental condition, including the impact (if any) of her eating disorder.  The findings will need to address any fluctuation that is asserted in the claimant’s condition. In addition to considering whether the claimant fulfils any of the descriptors  put in issue by her or apparent to the tribunal from he evidence, the tribunal will (if the claimant does not reach the 15 point threshold from the descriptors) also need to consider the possible application of regulation 29.  In doing so it will have to apply Charlton v SSWP [2009] EWCA Civ 42, including in view of the evidence at p76considering whether or not para 34 of Charlton has any applicability:

            “Regulation 27(b) may be satisfied where the very finding of capability       might create a substantial risk to a claimant's health or to that of others,        for example when a claimant suffering from anxiety or depression          might suffer a significant deterioration on being told that the benefit             claimed was being refused. Apart from that, probably rare, situation,            the determination must be made in the context of the journey to or from            work or in the workplace .”

(Charlton dealt with the predecessor legislation, but the principles are the same.). The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.

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

14.. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

(signed)                                                                    

C.G.Ward

Judge of the Upper Tribunal

20 March 2014