IN THE UPPER TRIBUNAL Case No  CI/1306/2014

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Port Talbot on 27 September 2013 under reference SC156/12/05084 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 10 of the Reasons.

REASONS FOR DECISION

1. The representatives of both the claimant 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 it was improperly constituted for a case about reduced earnings allowance.

3. This case was heard by a judge sitting alone.  It is clear from the First-tier Tribunal’s file that this was done advisedly.

4. The composition of the panel is dealt with by the Practice Statement entitled “Composition of tribunals in social security and child support cases in the social entitlement chamber on or after August 1, 2013.”  It provides that:

“5. Where –

…

e. the appeal raises issues relating to […] or industrial injuries benefit under Part V of that Act (except for an appeal where the only issue is whether there should be a declaration of an industrial accident under   section 29(2) of the Social Security Act 1998);

the Tribunal must, subject to paragraphs 7 to 14, consist of a Tribunal Judge and a Tribunal Member who is a registered medical practitioner.“

5. Reduced earnings allowance is a form of industrial injuries benefit: see Social Security Contributions and Benefits Act 1992 s.94(2):

“Industrial injuries benefit consists of the following benefits –

…

(b) reduced earnings allowance payable in accordance with Part IV [of schedule 7]”.

6. Unless therefore, for some reason, the case fell within paragraphs 7 to 14 of the Practice Statement, the tribunal was incorrectly constituted, because there was no doctor on the panel.

7. Para 8 of the Practice Statement does allow a direction to be given in a particular case that a judge may sit alone.  Paragraph 9 allows the power to give such a direction to be delegated to a Regional Tribunal Judge or a District Tribunal Judge.

8. However, it is clear from the refusal of permission to appeal at p206 that the judge concerned takes a different view from the view I have reached about the application of the Practice Statement, rather than that there was any direction given.  (The judge in refusing permission refers to the Practice Statement applicable from 1 February 2013 but as that is identical to the August 2013 one on this issue, nothing turns on that.)

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

10. I direct that the tribunal must be constituted by a judge and a tribunal member who is a registered medical practitioner, unless a direction under the Practice Statement is made by a person authorised to make it to the effect that a judge may sit alone.  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.  The tribunal must not take into account any circumstances that were not obtaining at the date of the decision appealed against (5 September 2012) – 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.

11. 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

15 September 2014