Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CAF/529/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Before Upper Tribunal Judge Rowland

 

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 5 November 2013 is set aside and the case is remitted to a differently-constituted panel of the First-tier Tribunal to be re-decided.

 

 

REASONS FOR DECISION

 

1. As I observed when issuing case-management directions, this is yet another case where the First-tier Tribunal has, on a claimant’s appeal, reduced an assessment made by the Secretary of State rather than either allowing the appeal and increasing the assessment or simply dismissing the appeal.  Moreover, it is yet another case where it has done so in the absence of the claimant.

 

2. The claimant served in the Royal Air Force from 18 October 1965 until 12 May 1969.  His service included a posting to Aden, shortly before the British withdrawal and at a time when British forces were frequently being attacked by terrorists.  The reasons for his discharge are not entirely clear but it is was recorded on his discharge medical examination report that he was suffering from “reactive depression – not severe enough to warrant discharge”.  A medical officer’s report mentioned in the discharge medical examination report is not in the papers before me.

 

3. It appears that the claimant was first awarded a disablement pension under the predecessor of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (SI 2006/606) with effect from 7 September 1993, on the basis of what is now accepted to be post-traumatic stress disorder in respect of which disablement was assessed at 30% with effect from 7 September 1993 and 60% with effect from 29 November 2000.  Since 5 September 2003, it has also been accepted that he is suffering from atherosclerosis, aggravated by service and resulting in ischaemic heart disease and peripheral vascular disease, but that has not affected the overall assessment of disablement.

 

4. On 3 August 2011, the Secretary of State received an application for review, which was also treated as a claim in respect of seven previously unconsidered conditions.  The application and claims were treated as having been made on 27 July 2011, apparently because a telephone call had been received then.  On 16 August 2011, the Secretary of State refused to review two previous decisions to the effect that claimed conditions were not due to service, which had both been upheld by a pensions appeal tribunal, and also the assessment in respect of atherosclerosis.  There was a medical examination on 28 October 2011 and that resulted in a decision on 11 January 2012 in which the Secretary of state found that no fewer than seven conditions mentioned in the application for review form were not due to service.  Post-traumatic stress disorder had not been mentioned by the claimant on his application for review form but, the claimant having mentioned it in his medical examination and in correspondence, he was sent another application form on 25 January 2012 which was received back from him on 14 February 2012.  That application was initially treated as having been made on 27 January 2012 but was then treated as having been made on 27 July 2011, as had the earlier application.  Presumably this was because he had raised the issue while his previous application was still being considered.  In any event, the new application led to another medical examination on 26 October 2012.  The claimant also supplied further evidence.  In the light of the examination report and the other evidence, the Secretary of State reviewed the assessment of disablement under article 44(1)(b) of the 2006 order but maintained it under article 44(6).  The decision was conveyed to the claimant in a letter dated 20 March 2013.  The claimant appealed.

 

5. The Secretary of State’s response to the appeal included the certificate of entitlement and assessment dated 15 March 2013, which described the claimant’s condition and explained why the doctor considered that the assessment “continues to reflect, most amply, such overall disablement and any fluctuations of disablement associated with such condition”.  It also included a “medical certificate of limitation”  (a document that was of no legal effect (see Secretary of State for Defence v RC (WP) [2012] UKUT 229 (AAC) at paragraph 34)) dated 4 September 2003 in respect of the atherosclerosis, which had led to the refusal to review the assessment in respect of that condition on 16 August 2011.  No other document created by, or received by, the Secretary of State between the discharge medical examination report from 1969 and the record of the telephone call received on 27 July 2011 was included in the response, although the documents obtained by the Secretary of State in 2012 did include medical records from 2009. 

 

6. The claimant stated that he did not wish to attend the hearing of his appeal but that he would be represented by the Royal British Legion.  However, he was then arrested and briefly imprisoned.  At the beginning of the hearing, his representative informed the First-tier Tribunal that the claimant was in prison and that she had been unable to discuss his case with him.

 

7. Nonetheless, the First-tier Tribunal proceeded to hear the claimant’s appeal and decided to reduce the assessment from the long-term interim assessment of 60% to an interim assessment of 30% in respect of the period from 27 July 2011 to 4 November 2014.  In relation to the claimant’s absence, it merely adopted in its statement of reasons the formulaic statement on its standard proforma to the effect that the claimant had not wished to attend and that the “Tribunal considers that there is sufficient evidence in the papers to reach a decision and it is in the interests of justice to proceed.” 

 

8. It then said

 

1.    We agree that the aggravated condition should be limited to 1-5%. Service ended 44 years ago and there can be no further Service-related influences in the appellant's current cardiac problems.

2.    There is no evidence in the Response to support such a very high assessment for PTSD. [The claimant] has multiple, serious and disabling non-accepted conditions which in themselves will be contributing to his mental health problems.

3.    [The claimant’s] level of function, for his age, is comparatively good. He can self-care (dress, cook and shop), he drives his car locally, he has hobbies and interests although avoids social contacts.

4.    We note from his G.P. records at p.66-77 that he attends his G.P. on a very regular basis in respect of his other conditions, which demonstrates a good level of function. These cover 3 years from 2009 - 9/12 and mention 'low mood' only 3 times in that period.

5.    There are no psychiatric reports, counselling, interaction with CMHT's or other mental health professionals. He has declined attendance at Combat Stress. His medication is Citalspram 40 mg/day which is average medication for low mood.

6.    We do accept his self-reports of nightmares and disturbed sleep. We note that he his self-harming, but this is also likely to be linked to the low mood associated with his general health problems.

7.    For these reasons we consider a 30% award more than adequately reflects disablement from the A-D's. We have limited the period to enable a review to take place in a year's time with a strong recommendation that a full psychiatric report is obtained. This should deal with the in-service incident and any post-service incidents (the G.P. letter on P.51 implies another non-service injury affecting the spine). It is probable that other medical reports will be commissioned following [the claimant’s] recent imprisonment, and these should also be obtained.

 

9. The claimant now appeals, with permission granted by a different judge sitting in the First-tier Tribunal, who did so on the grounds that it was arguable that the First-tier Tribunal had failed to take account of article 44(4) and (5) of the 2006 Order and that the First-tier Tribunal ought to have taken into account the possibility of n adverse revision when deciding whether to proceed in the claimant’s absence.  The claimant has provided further evidence of his experiences in Aden.  When I gave case management directions, I also raised the question of the date from which the First-tier Tribunal had revised the assessment.

 

10. The Secretary of State concedes that the appeal should be allowed on the ground that the First-tier Tribunal’s reasoning is inadequate and, in particular, that it has not explained why it did not accept the claimant’s “self-reports of nightmares and disturbed sleep”.  He has also responded to the point I raised when issuing case-management directions, but he has not addressed the grounds upon which permission to appeal was granted.

 

11. I accept the Secretary of State’s point that it is not at all clear why the First-tier Tribunal rejected the claimant’s evidence about nightmares and disturbed sleep.  It is possible that it rejected the evidence because nightmares and disturbed sleep were not mentioned in the medical notes, but if that was so the First-tier Tribunal should have said so.  It might also have considered whether the absence of any mention of nightmares and disturbed sleep in those records was that the claimant had mentioned them before and they had simply become part of the background of his condition that had arisen long before the period covered by the medical notes.  However, there are more fundamental errors in the decision. 

 

12. First, there is article 44(4) to which the judge granting permission to appeal drew attention.  Article 44(1) to (6) of the 2006 Order provides –

 

“44.—(1) Subject to the provisions of paragraphs (3), (4) and (5) and to the provisions of paragraph (8) —

(a) any decision accepting or rejecting a claim for pension; or

(b) any assessment of the degree of disablement of a member of the armed forces; or

(c) any final decision that there is no disablement or that the disablement has come to an end

may be reviewed by the Secretary of State at any time on any ground.

  (2) Subject to the provisions of paragraphs (4), (5), (8) and (9), any award under this Order may be reviewed by the Secretary of State at any time if the Secretary of State is satisfied that—

(a) the award was made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law;

(b) there has been any relevant change of circumstances since the award was made;

(c) the award was based on a decision or assessment to which paragraph (1) of this article applies, and that decision or assessment has been revised.

  (3) Any assessment or decision made, given or upheld by the Pensions Appeal Tribunal under section 8 of the War Pensions (Administrative Provisions) Act 1919 or the Pensions Appeal Tribunals Act 1943 or the First-tier Tribunal may be reviewed by the Secretary of State at any time if the Secretary of State is satisfied that there has been a relevant change of circumstances since the assessment or decision was made, including any improvement or deterioration in the disablement in respect of which the assessment was made.

  (4) Subject to the provisions of paragraph (9), following a review under paragraph (1) of any decision accepting a claim for pension or any assessment of the degree of disablement of a member of the armed forces, that decision or assessment may be revised by the Secretary of State to the detriment of a member of the armed forces only where the Secretary of State is satisfied that—

(a) the decision or assessment was given or made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law; or

(b) in the case of a decision accepting a claim for pension—

(i) the decision was given after it had been certified pursuant to article 43(b)(i) that the member of the armed forces was suffering from a specified disablement (“the certified condition”) which was attributable to, or aggravated by, his service, and

(ii) since the date of the decision it has been further certified, pursuant to article 43(b)(i), that the claimant was not, at the date of the earlier certification, suffering from the certified condition; or

(c) there has been a change in the degree of disablement due to service since the assessment was made.

  (5) An award under this Order may be revised by the Secretary of State to the detriment of a member of the armed forces only where the Secretary of State is satisfied that—

(a) the award was made in consequence of ignorance of, or a mistake as to, a material fact, or of a mistake as to the law; or

(b) there has been any relevant change of circumstances since the award was made; or

(c) the decision or assessment upon which the award was based has been revised under paragraph (4).

  (6) Subject to the provisions of paragraphs (4) and (5), on a review under this article, the Secretary of State may maintain or continue, vary or cancel the decision, assessment or award and any revised decision, assessment or award shall be such as may be appropriate having regard to the provisions of this Order.”

 

13. Article 44(4) provides that an assessment of disablement may be revised to the “detriment” of a claimant only if certain conditions are satisfied and, by virtue of article 44(5)(c), it is only then that an award may be revised to the detriment of a claimant in the light of a revision of an assessment.  It is generally understood that a decision, assessment or award is “revised” for the purpose of this article if it is continued (i.e., extended), varied or cancelled under article 44(6), as opposed to being maintained.

 

14. The conditions in article 44(4) material to the present case are that the original assessment “was … made in consequence of ignorance of, or a mistake as to, a material fact, or a mistake as to the law” or that “there has been a change in the degree of disablement due to service since the assessment was made”.  These conditions ensure that a mere difference of opinion as to the proper level of the assessment cannot justify a reduction in the assessment or the consequent award (see Cooke v Secretary of State for Social Security [2001] EWCA Civ 734 (reported as R(DLA) 6/01)).  It is therefore incumbent on the First-tier Tribunal to make it clear when revising an assessment to the detriment of a claimant, whether a condition in article 44(4) is satisfied and, if so, why.  In the present case, the First-tier Tribunal made no mention of article 44(4).  Sometimes the First-tier Tribunal’s reasons for making a lower assessment imply a clear finding that one of the conditions of article 44(4) is satisfied.  I do not consider that that was so in this case.

 

15. I do not mean to suggest that one of the conditions in article 44(4) might not have been made out in this case, but I have some doubt as to whether a finding to that effect could properly have been made on the evidence before the First-tier Tribunal.  It may be difficult to identify ignorance or error in a previous assessment, or a clear change of circumstances, if the First-tier Tribunal does not have before it the earlier decision or the material upon which it was made.  None of that material had been made available in the present case, no doubt because the Secretary of State did not anticipate his assessment being revised to the detriment of the claimant.  It may be possible to infer that one or other of the conditions for revising an assessment to the detriment of the claimant is satisfied even if the precise one cannot be identified (as was done in Cooke), but the drawing of such an inference must be explained in any statement of reasons. 

 

16. I would also point out that article 44(4) obviously raises issues not raised by a claimant’s appeal and section 5B(a) of the Pensions Appeal Tribunals Act 1943 provides that the First-tier Tribunal “need not consider any issue that is not raised by the appellant or the Minister in relation to the appeal”.  Therefore, where the First-tier Tribunal is hearing an assessment appeal brought by a claimant but considers that the assessment may be too high, it may be open to it simply to dismiss the claimant’s appeal and draw the Secretary of State’s attention to the possible grounds for a downward revision, rather than itself going on to consider whether any of the conditions in article 44(4) is made out which it may not be able to do without an adjournment in order to obtain the relevant evidence.

 

17. Even without having regard to article 44(4), it seems remarkable that the First-tier Tribunal should have relied on the lack of medical reports as a ground for making its decision without apparently considering whether the Secretary of State might have had some earlier but still relevant reports in his possession, including the reports that persuaded him to accept that the claimant was suffering from post-traumatic stress disorder due to service in the first place.  I appreciate that the First-tier Tribunal was concerned with the current level of the claimant’s disablement, but earlier material as to the causes of the claimant’s condition might have been illuminating and have explained why the Secretary of State had not obtained further reports in connection with the review application he was considering.   It seems even more remarkable that the First-tier Tribunal should have recommended that a psychiatric report dealing with relevant issues should be obtained before any further assessment was made but, having commented on the lack of evidence before it, not have considered obtaining such a report before it made its own decision adverse to the claimant.

 

18. This brings me to the second ground upon which permission to appeal was granted, which is essentially whether there was a breach of the rules of natural justice.  The claimant was not present at the hearing and so could not give oral evidence in response to the new case against him being made by the First-tier Tribunal.  It is true that he had deliberately decided not to attend before he was arrested, but that was before he had had any specific indication that his current assessment might be reduced.  In KO v SSWP (ESA) [2013] UKUT 544 (AAC), Upper Tribunal Judge Gray said that –

 

“… there is a continuing obligation on the tribunal to consider whether or not it is fair to proceed in the absence of the appellant throughout the case. That does not mean, of course, that a case cannot be decided against an absent appellant, but where there are issues which attain considerable importance in relation to the decision the panel are likely to make whilst the panel are deliberating there may be a reason to revise the original decision to hear the case in the appellant's absence.”

 

19. Moreover, although the claimant had decided not to attend the hearing, he had arranged to be represented, as he was entitled to do.  However, his representative had told the First-tier Tribunal that she had no instructions.  The First-tier Tribunal completely failed to explain in its statement of reasons how it understood that the claimant could properly be represented in those circumstances or, alternatively, on what basis it was just to hear the case without him being properly represented.  I suspect that that may have been because the First-tier Tribunal did not in fact address those issues.

 

20. Indeed, as far as I can tell from the records of proceedings made by the judge and members, the representative was given no indication that the First-tier Tribunal was minded to reduce the current assessment or opportunity to comment on that possibility, which might have prompted an application for adjournment.  I am not sure why she did not expressly apply for an adjournment anyway, although she may have felt that her saying she had no instructions due to the claimant being in prison carried with it an implication that an adjournment might be necessary.

 

21. I turn to the issue I raised when issuing case-management directions, which was whether the First-tier Tribunal erred in making its decision effective from 27 July 2011 (the date the claimant indicated he wished to apply for a review) rather than from 20 March 2013 (the date of the Secretary of State’s decision).  I said that –

 

“… it is arguable that, where a claimant applies for a review, seeking an increased assessment, and the assessment is instead decreased on review, the review should be treated as having been instigated by the Secretary of State so that paragraph 1(6) of Schedule 3 to the 2006 Service Pensions Order normally applies, rather than paragraph 1(1) and (2).  This is the approach taken to the similar provisions in the general social security scheme (see R(IB) 2/04 at paragraphs 95 to 97), although I accept that there are possibly material differences between the schemes.  In any event, it is arguable that article 37 does not apply to applications for review so that the material date would have been 3 August 2011, rather than 27 July 2011 even if paragraph 1(1) and (2) applied.

 

It may be that this … point is only of academic importance.  Does the Secretary of State ever recover overpayments that become apparent when an award is reviewed retrospectively?”

 

22. The Secretary of State’s response was –

 

“When putting a reduced assessment into payment this is commenced from the ‘date last paid’ and, accordingly, no overpayment is raised and there is nothing to have to recover.  Where a claimant requests a review of their assessment they do so in the knowledge that their assessment could be maintained, increased or reduced.  There is no provision for a claimant’s review to be ‘turned into’ a Secretary of State review because it results in a decision unfavourable to him.  As reduced payments are only made from date last paid, it is agreed that the issue is only of academic importance.”

 

No statutory justification for the Secretary of State’s practice was advanced.  Upon reflection, I am satisfied that something very similar to that practice is required by the legislation, although that involves rejecting the arguments advanced by the Secretary of State.

 

23. Paragraph 1 of Schedule 3 provides –

 

“1. (1) Subject to the following provisions of this Schedule, an award or an adjustment of an award shall have effect from such date as may be specified in the award, being a date not earlier than the date specified in subparagraph (2) which is relevant in the claimant's case.

  (2) The date specified in this subparagraph is whichever date is the latest in time of the date—

(a) following the date of termination of service or, in a case under Part III, following the date of death of the member;

(b) of the claim;

(c) of the last application for review; or

  …

  (6) Subject to subparagraphs (7), (8) and (9), where an award is adjusted upon review instigated by the Secretary of State, the adjustment shall take effect from the date of the review.

  …”

 

The misplaced “or” and lack of a full stop at the end of paragraph 1(2) appear in the Queen’s Printer’s version of the statutory instrument.

 

24. In considering the application of Schedule 3, it is important to bear in mind that an assessment of disablement is treated as a free-standing decision in article 44 and, indeed, also in the 1943 Act.  It is separate from the award.  The power to review the assessment in the present case arose under article 44(1)(b) and the power to review the award upon the revision of the assessment arose under article 44(2)(c).  Schedule 3, which is introduced by article 46, makes provision for the commencing dates of awards but not of assessments as such.  Where there is an appeal under section 1 or section 5 of the 1943 Act following a review under article 44(1), the appeal is not concerned with any decision made under article 44(2)(c) in respect of the award.  Because notice of a revision by the Secretary of State of an assessment of disablement is usually notified to the claimant in the same letter as notification of the consequential revised award, there may be occasions when an appeal by the claimant should be taken as being both an appeal against the assessment and an appeal, under section 5A of the 1943 Act, against the commencing date of the award but, in principle, they are separate cases.  Where an assessment is being revised, the date from which the revision is effective needs to anticipate the commencing date of the consequent revision of the award to the extent that it should be for a sufficient period, but the commencing date does not apply directly to the assessment. 

 

25. The rationale behind, on one hand, subparagraphs (1) and (2) and, on the other hand, subparagraph (6) of paragraph 1 of Schedule 3 is clear.  Where a claimant is deemed to have made a claim or actually makes a claim or applies for a review, he or she should not be prejudiced by the inevitable delay in determining the claim or application.  Where a decision is made on the Secretary of State’s own initiative, the claimant is neither to be faced with an adverse retrospective award, potentially having the effect that there is an overpayment to be recovered, nor to be given the advantage of a favourable retrospective award that he should have applied for earlier.  This, of course, is subject to the other provisions of the Schedule permitting awards to have retrospective effect, most relevantly subparagraphs (7), (8) and (9) of paragraph 1 which make provision for cases where there has been an “official error” or a suspension of payment.

 

26. Although Schedule 3 is concerned with awards, it appears that an “application for review” in paragraph 1(2)(c) of that Schedule must be taken to include a reference to an application for a review under article 44(1) that might lead to a review of an award under article 44(2)(c), as well as referring to an application for review under article 44(2), because otherwise part of the purpose behind paragraph 1(1) and (2) would be lost.

 

27. The question that then arises is whether, when a claimant applies for a review in the hope of obtaining an upward variation of an award but the award is varied downwards, the downwards variation is to be regarded as having been made on a review “instigated by the Secretary of State” rather than on the claimant’s application, so that subparagraph (6) of paragraph 1 applies, rather than subparagraphs (1) and (2).  Article 44 itself does not distinguish between reviews made on a claimant’s application and reviews instigated by the Secretary of State.  The question is therefore to be answered by construing the Schedule.

 

28. Of course, as the Secretary of State submits, a claimant who applies for a review is likely to be aware that the review may result in a revision that is unfavourable to him.  But it does not follow that such a claimant expects any unfavourable decision to be effective from the date of his or her application and, indeed, if he or she were aware of the Secretary of State’s practice, his or her expectation would in fact be that an unfavourable decision would be effective only from a much later date. 

 

29. I accept that it would be possible to regard an unfavourable review made as a result of an application by a claimant as being made on that application, rather than being instigated by the Secretary of State.  On the other hand, it is also possible to review any unfavourable review as being instigated by the Secretary of State, even if prompted by a claimant’s application.  On the latter analysis, the application would be “only the setting” for the Secretary of State’s instigation, if I may borrow a phrase sometimes used by the Secretary of State in a very different context.  Which of these approaches is the correct one depends on which best gives effect to the intentions of the legislator.  Having regard to the rationale for the legislation suggested above, I have no doubt that the second of those approaches is the one that should be adopted and that the legislation should be construed accordingly.

 

30. That was the approach taken in R(IB) 2/04, to which I referred when giving case-management directions.  However, in one very important respect, that case is distinguishable from the present one.

 

31. Although the legislation for determining the date from which supersession decisions in social security cases are effective is in relevant respects similar to paragraph 1 of Schedule 3 to the 2006 Order, appeals in incapacity benefit cases and disability allowance cases of the type before the Tribunal of Commissioners in R(IB) 2/04 were in respect of decisions as to entitlement to benefit so that, where an award had been made, the appeal was against that award.  The issue for the appeal tribunal was therefore what award the Secretary of State should have made, based on the circumstances obtaining at the time of his decision.  Consequently, if a less favourable award than the one under appeal was to be made by the First-tier Tribunal, that was on the basis that the Secretary of State should have made such an award instead of the decision he did give and it was therefore effective from the date of his decision.

 

32. In the present case, the appeal before the First-tier Tribunal was brought under section 5 of the 1943 Act and was only against the maintained assessment of disablement and not also against the consequent decision (if there was one) not to review or not to revise the award.  It was no part of the First-tier Tribunal’s function to review the award which is why, as I have suggested above, its role was not to fix the commencing date but merely to make such assessment as would be necessary for the purposes of the consequent award.  Instead, the review of the award only took place after the First-tier Tribunal had made its decision to revise the assessment.  Consequently, applying paragraph 1(6) of Schedule 3, the commencing date of the reviewed award was the date of that review, which is more or less what the Secretary of State’s practice achieved. 

 

33. It appears, therefore, that the Secretary of State’s practice is in fact consistent with the legislation even if either the link has been forgotten or the practice was developed without regard to the legislation or, possibly, before the forerunner of Schedule 3 was introduced.  The implication for the First-tier Tribunal is that, where it is revising to the detriment of a claimant an assessment made by the Secretary of State, it generally need not make an assessment in respect of any period before the date of its decision, although it must, of course, not take into account any circumstances not obtaining at the date of the Secretary of State’s decision (see section 5B(b) of the 1943 Act).  However, making an assessment from too early a date has no practical consequences and is therefore an immaterial.

 

34. I also referred to article 37.  Article 37(1) and (2) provides –

 

“37.—(1) In this Order “date of claim” means, subject to the following paragraphs of this article, the date on which a claim is received by the Secretary of State or by an authorised agent.

  (2) Where—

(a) not more than 3 months earlier than the date referred to in paragraph (1), an enquiry is made in person, in writing or orally to the Secretary of State or to an authorised agent about claiming any pension, retired pay, allowance or supplement for a named person; and

(b) that enquiry is made by the person who subsequently makes the claim or by a relative of his or by a representative of a charitable organisation

then “date of claim” means the date on which the enquiry is received by the Secretary of State or, as the case may be, the authorised agent.”

 

35. The Secretary of State seems to have treated the date of the claimant’s application for a review as being the date on which he first contacted the Secretary of State or an authorised agent rather than the date on which the application was first received.  If that was done in reliance on article 37(2), the approach was wrong because article 37 applies only to claims.  As is recognised in paragraph 1(2) of Schedule 3, a claim and an application for review are not the same thing.  (It may often be the case that the first communication with the Secretary of State or authorised agent is one that can properly be treated as being an application for review, notwithstanding that the official form was not used.  This is possible because article 34, requiring approved forms to be used for claims, also does not apply to applications for review.)  However, since the commencing date of the award was not before the First-tier Tribunal and it does not matter if an assessment is made from too early a date, nothing turns on the precise date of the application for review in this appeal.

 

36. Nonetheless, for the reasons I have given above, I am quite satisfied that the First-tier Tribunal’s decision is erroneous in point of law both because it either acted unfairly and without regard to article 44(4) or because it failed to give reasons sufficient to show why it had rejected the claimant’s written evidence, how it had found the conditions in article 44(4) to be satisfied and why it had considered it fair to reach the decision it did in the absence of the claimant and without his representative having been able to obtain proper instructions.

 

37. I therefore allow the claimant’s appeal and remit the case to be re-decided by the First-tier Tribunal, as both parties have suggested.

 

 

 

 

 

Mark Rowland

5 August 2014