Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 8 August 2013 at Derby under reference SC143/12/02482) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.

DIRECTIONS:

A.        The tribunal must undertake a complete reconsideration 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.

B.        In particular, the tribunal must investigate and decide whether the claimant is entitled to the support component on and from 20 October 2012.

C.        In doing so, the tribunal must not take account of circumstances that were not obtaining at that time: see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.

D.        The tribunal will need to consider what directions to give to the Secretary of State in respect of information relevant to this appeal.

E.        I also draw to the tribunal’s attention the GP’s request for a domiciliary medical, which raises the issue whether the tribunal should hold a domiciliary hearing, especially as the claimant’s condition is said to have deteriorated (page 115).

Reasons for Decision

A.        Introduction

1.         This case raises a series of issues about the presentation and conduct of appeals relating to regulation 35(2) of the Employment and Support Allowance Regulations 2008 (SI 794):

35 Certain claimants to be treated as having limited capability for work-related activity

…

(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—

(a) the claimant suffers from some specific disease or bodily or mental disablement; and

(b) by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.

2.         Both the claimant and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error in point of law and agreed to a rehearing.

3.         I would normally have dealt with the issues in this case in more detail. However, the caselaw has developed since I gave permission to appeal in February 2014, as has the understanding of the Secretary of State and the First-tier Tribunal of what is required in cases like this.

B.        Why I have set the tribunal’s decision aside

4.         In summary, I have set the tribunal’s decision aside, because the Secretary of State’s submission did not sufficiently alert the claimant to regulation 35(2) and the tribunal failed to use its powers, including the power to hold a domiciliary hearing, to remedy that deficiency.

5.         I set out my concerns in my grant of permission to appeal.

The decision made by the Secretary of State did not refer to regulation 35 and did not even mention that regulation as one that was applied. See pages 2 and 36. To that extent, it appears to be incomplete.

The Secretary of State’s submission to the tribunal does mention regulation 35 in paragraph 5.3 on page 3, but then concludes by asking the tribunal only to consider the descriptors in Schedule 3 (page 5).

The questionnaire completed by the claimant addresses Schedule 2 and does not specifically seek information about the support group (pages 11-30). The same is true of the GP’s fit note (pages 31-32A).

The claimant said on the pre-listing enquiry form that he could not attend an oral hearing on account of his agoraphobia. His doctor had asked for a home medical (page 33). The tribunal gave no directions or guidance on the evidence that might be relevant; all it did was to obtain the GP’s records (pages 38-62). The tribunal did not hold an oral hearing and said that it could decide the appeal without one and that it would be just to do so. It does not appear ever to have considered a domiciliary hearing, despite the letter from the GP about the medical.

The claimant has been unrepresented throughout. How could he tell from the material provided by the Secretary of State, without any assistance from the tribunal, that issues relevant to regulation 35 could be considered? The tribunal has an inquisitorial approach, but how can it operate that if the claimant is never alerted to the scope of the appeal? Did the Secretary of State co-operate with the claimant and the tribunal as required by the overriding objective? Did the tribunal exercise its powers in a way that ensured effective participation in the proceedings, again as required by the overriding objective? Did the tribunal use its expertise appropriately, again as required by the overriding objective?

Some of the concerns I expressed in the final paragraph have now been overtaken, but the overall effect at the time was that the claimant was left without any idea of an important legal provision that might be to his advantage or of the evidence that would help him to show that it applied.

C.        What will happen at the rehearing

6.         The tribunal must follow the directions I have given. I need to mention in particular direction C. The claimant’s son has written that his father’s condition has deteriorated in the last eight months. That is not something that the tribunal will be able to take into account at the hearing. Section 12(8)(b) of the Social Security Act 1998 provides that the tribunal has to limit itself to the circumstances as they were at 20 October 2012.

7.         Unless and to the extent that I have directed otherwise, the rehearing will not be limited to the grounds on which I have set aside the tribunal’s decision. The tribunal will consider all aspects of the case, both fact and law, entirely afresh.

8.         The tribunal will not be limited to the evidence and submissions before the tribunal at the previous hearing. It will decide the case on the basis of the relevant evidence and submissions made at the rehearing.

9.         The tribunal must come to its own conclusions on issues of both fact and law that it considers. Neither my decision itself nor anything I have written in my reasons for decision is an indication of the likely outcome of the rehearing. Nor will the tribunal be bound by any conclusions of fact or law reached by the tribunal in the decision that I have set aside.