Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                 Appeal No: CE/54/2014

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 Manchester on 25 September 2013 under reference SC946/13/06086 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 will be at an oral hearing

(2)              The appellant is reminded that the tribunal can only deal with his situation as it was down to 14 February 2013 and not any changes after that date.

(3)              If the appellant has any further evidence that he wishes to put before the tribunal that is relevant to his health conditions in February 2013, this should be sent to the First-tier Tribunal’s office in Liverpool 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.                   Both parties having agreed that the First-tier Tribunal’s decision of 25 September 2013 (“the tribunal”) was erroneous in law and the appeal ought to be remitted to a freshly constituted First-tier Tribunal to be redecided, and my agreeing with that result, I set the tribunal’s decision aside for the following reasons.

2.                  First, and perhaps most critically, the tribunal failed to make adequate findings of fact on the mobilising descriptor and failed to explain adequately why the appellant’s walking around Tesco’s using a trolley stood against him meeting any mobilising descriptor. As Judge Jacobs put it in AH –v-SSWP [2013] UKUT 0118 (AAC); [2013] AACR 32, at paragraph 21:

“The key to applying the words of Activity 1 lies in making findings of fact relevant to [the words set out in activity 1] that are as specific as the evidence allows. And, if the claimant is present at the hearing, the tribunal should ensure that it obtains evidence that is sufficient to that purpose. Just to take one example: the tribunal should have probed Mr H’s evidence that he “could not repeatedly do 50 metres”. How far could he walk before stopping? What made him stop? How did he feel? How soon could he proceed? How often could he repeat that process? This was particularly important in this case, because of the content of Mr H’s evidence to the tribunal.”    

That investigation and analysis was not carried by the tribunal here, and that deficit amounts to a material error of law. For example, there is no evidence the tribunal investigated with the appellant how far he walked in the Tesco’s store before he stopped, and if he stopped why he did so. Even for the fully able bodied walking around a supermarket shopping is very often not uninterrupted as the act of shopping requires stopping to get items off shelves.  In addition, as the Secretary of State helpfully points out, there is no evidence the tribunal considered the scan results (pages 71-72) and whether the degenerative changes they show might account for problems mobilising.

3.                  Second, but related to the first error of law, the tribunal erred in law in my judgment in its approach to the appellant being in receipt of the higher rate mobility component of DLA (”hrmc”).  For present purposes I put it no higher than this. The tribunal noted that the appellant and his wife were both in receipt of the hrmc (and that he was in receipt of the lowest rate of the care component of DLA and his wife in receipt of the middle rate of the care component). It said, however, that there was inherent discrepancy in these awards, but it did not say why that was the case. The tribunal then said, in relation to mobilising, that its finding that the appellant could walk for more than 200 metres (a finding which I note does not address the repeatedly mobilising test, which has to be assessed separately: HD –v- SSWP [2014] UKUT 72 (AAC)), made his entitlement to the hrmc questionable. 

4.                  However, with respect, this is to put the proverbial cart before the horse.  If there is a similarity between the test for the hrmc under the virtual inability to walk test and the mobilising activity in the Employment and Support Allowance Regulations 2008, as the tribunal plainly considered was the case (and from which I would not dissent), what is relevant is the evidence that led to that award: see ML –v SSWP [2013] UKUT 0174 (AAC); [2013] AACR 33 at paragraph 18 and DF –v- SSWP [2014] UKUT 0129 (AAC).   

5.                  In the circumstances, I consider the tribunal erred in law in failing to give any consideration to whether it ought to have had before it the evidence that led to the hmrc award being made to the appellant, as part of its proper assessment (paragraph 2 above) of the appellant’s ability to mobilise as at 14 February 2013.  

6.                  In a sense, this may be seen as another aspect of, or a subset of, the first error of law. If the tribunal had properly investigated with the appellant, and on the evidence before it, his ability to mobilise in February 2013, and made clear findings of fact on the same (and reasoning thereto), then the relevance of the evidence that led to the hrmc award may have fallen away.  However, absent such a proper investigation and the evidence that led to the hrmc award, I do not consider the tribunal had a proper basis for questioning the hrmc award.

7.                  Where an appellant is relying on his or her having been awarded the hrmc of DLA as relevant evidence from the outset of his appeal (which was not the case here), then the Secretary of State may have denied him a fair hearing if he does not put the evidence that led to the hrmc award before the First-tier Tribunal (see DF above). The First-tier Tribunal may in any event wish to call for such evidence to be put before it if the evidence that is already before it (either before or after a hearing) is otherwise unclear or incomplete. 

8.                 Of course, the issue in the end in all such cases will be whether the hrmc evidence is relevant.  If, for example, a tribunal was to conclude that a claimant could not walk, say, 50 metres without stopping in order to avoid significant discomfort or exhaustion but he could reasonably use a manual wheelchair to cover that distance, then the evidence underpinning the hrmc award is not likely to be relevant.  Likewise if the hrmc award was made three years ago for a period of five years and there has been a change of circumstances since affecting the claimant’s ability to walk, then the hrmc award may no longer be relevant.                                           

9.                  The third error of law lies in the tribunal’s treating the “typical day” evidence in the Health Care Professional’s (“HCP’s”) ESA85 report as accepted and unchallenged. In my judgment the submission made on behalf of the appellant on pages 67-70 was, in substance, putting in issue the typical day evidence and I can find nothing in the record of proceedings showing that the appellant accepted the typical day evidence in the ESA85.  The tribunal then erred materially in law in (a) failing to investigate the areas of challenge and (b) failing to explain why the typical day evidence was to be preferred.  For example, the typical day says “No problem dressing” but on page 69 it is said that the appellant was finding it increasingly necessary to get help from his wife when dressing his lower limbs.         

10.              For these reasons, the tribunal’s decision dated 25 September 2013 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 5^th June 2014