Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 25 November 2013 at South Shields under reference SC233/13/00673) 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 the claimant’s entitlement to an employment and support allowance on and from 2 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.

Reasons for Decision

1.         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. 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.

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

2.         I have set the tribunal’s decision aside, because the tribunal’s reasons are too general to be adequate. It also misdirected itself on the relevance of the Equality Act 2010, which has now been the subject of detailed consideration by Upper Tribunal Judge Wright in JS v Secretary of State for Work and Pensions [2014] UKUT 428 (AAC), which is in the papers.

B.        The invitation for a submission on the application

3.         I do not need to deal with any other error in point of law that the tribunal may have made. Any that were made will be subsumed by the rehearing. I do, though, want to comment on one matter. When the claimant applied to the First-tier Tribunal for permission to appeal, Judge Moss invited the Secretary of State to comment, saying:

The decision of the tribunal involved the exercise of its judicial discretion in the way it dealt with the appeal. In deciding whether to grant permission to appeal the issue is whether the tribunal made a decision that no reasonable tribunal, on the facts of this case, could have made. The secretary of state is to indicate whether he has any comments to make about

(i) the legal reasonableness of the exercise of the tribunal’s judicial direction

(ii) the reasons given for exercising its discretion.

I could not find any response to that invitation, either in the Upper Tribunal’s papers or in the First-tier Tribunal’s file, so I asked the Secretary of State if there had been any response and have been told that there was not.

4.         It was important to know what response, if any, the Secretary of State had made, because if the Secretary of State had supported the application, Judge Moss would have been obliged to set the tribunal’s decision aside under section 13(3) of the Social Security Act 1998. In contrast to the tribunal’s power to set aside a decision following a review under section 9(4)(c) of the Tribunals, Courts and Enforcement Act 2007, section 13(3) imposes a duty on the tribunal once the conditions are satisfied.

5.         There are a number of problems with how Judge Moss expressed himself. I will confine myself to just one. There is a difference between discretion and judgment. Almost every discretion involves the exercise of judgment, but not all exercises of judgment involve discretions. When a tribunal assesses the evidence, finds facts and applies the law to those facts, it is exercising judgment. It is not exercising a discretion in the way it does, say, when it has to decide whether or not to adjourn a hearing.

C.        What will happen at the rehearing

6.         The tribunal must follow the directions I have given.

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.