Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                         Appeal No. CDLA/3032/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge K Markus QC

The decision of the Upper Tribunal is to allow the appeal.  The decision of the First-tier Tribunal made on 18 September 2013 under number SC173/13/01760 was made in error of law.  Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions.

Directions

1. This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing. 

2. The file should be referred to a District Judge to consider what directions to make in order to enable the appellant’s participation at the next hearing.

3. The members of the First-tier Tribunal who reconsider the case should not be the same as those who made the decision which has been set aside.

4. The new tribunal will be looking at the appellant’s circumstances at the time that the decision under appeal was made, that is the 8 April 2013. 

5. The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal.  It will not be limited to the evidence and submissions before the previous tribunal. It will consider all aspects of the case, both fact and law, entirely afresh and it may reach the same or a different conclusion to the previous tribunal.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

1.         This appeal concerns a decision of the First-tier Tribunal upholding a decision of the Secretary of State that from the 27 February 2012 to 26 February 2017 the appellant is entitled to the care component of Disability Living Allowance (DLA) at the lowest rate and the mobility component at the lower rate.

2.         The appellant’s main problems were agarophobia, diabetes, loss of feeling in her hands and feet, and bowel problems.

3.         The First-tier Tribunal refused the appellant’s request for a statement of reasons because it was made late.  As I pointed out when I gave permission to appeal, this has the effect that the basis upon which the Upper Tribunal can find an error of law is limited.  Despite that I identified an arguable error of law by the tribunal in proceeding in the appellant’s absence. 

4.         Both the appellant and the Secretary of State are of the view that the decision of the tribunal involved the making of an error of law and agree that the decision should be set aside and remitted to the First-tier Tribunal for reconsideration. Neither party has requested an oral hearing and I am satisfied that I can properly determine the case without a hearing. 

5.         In the light of the positions of the parties it is unnecessary for me to set out in detail the background to the case or the evidence and arguments.  It is sufficient for me to explain briefly why I am allowing the appeal.

Discussion

6.         The appellant had informed the Tribunal Service that she did not wish to attend a hearing. Rule 27(1) of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 applied.  There is no mention in the Decision Notice of the tribunal having considered whether it was able to decide the matter without a hearing, but I cannot infer from this that the tribunal failed to consider the matter.  It is not uncommon for tribunals to omit this from the Decision Notice but address it in the statement of reasons.

7.         In most cases the informed choice of an appellant not to attend a hearing should be respected: AT v Secretary of State for Work and Pensions (ESA) [2010] UKUT 430 (AAC).  However I consider that this was an exceptional case.  The appellant’s letter of appeal to the First-tier Tribunal made it clear that she was unable to go out because of her agoraphobia.  The information from her GP confirmed that she had “fairly severe agoraphobia” as a result of which she found it difficult to leave the house.  On the basis of the GP’s evidence the tribunal found that the appellant suffered from agoraphobia and was unable to go out alone.  It was on that basis that the tribunal awarded the appellant the lower rate of the mobility component. 

8.         The overriding objective includes ensuring, as far as practicable, that the parties are able to participate fully in the proceedings.  I acknowledge that, in the light of the tribunal awarding the lower rate of the mobility component, its view was that the appellant would benefit from the guidance or supervision of another in order to enable her to walk out of doors.  Nonetheless this did not of itself dispose of the question whether the appellant was unable to attend the hearing on that day because of her agoraphobia. 

9.         As I pointed out when I granted permission, the evidence before the tribunal meant that hearing from the appellant may have been particularly important.  The appellant had been in receipt of the middle rate of the care component until the decision of 8 April 2013.  From a comparison between the claim form which led to that award, and the renewal claim form which led to the decision under appeal, it is difficult to discern any substantial difference in her care needs as described by her.  No assistance on that is obtained from the advice from Medical Services or the other evidence in the file. Moreover, the appellant claimed that her condition was deteriorating.  These were matters that the tribunal, exercising its inquisitorial function and in pursuit of the overriding objective, should have sought to have addressed by hearing from the appellant if possible. 

10.      I conclude therefore that this was a case in which the tribunal should have attempted to overcome the appellant’s inability to attend in person by considering whether her participation in the hearing could have been facilitated, for instance by offering to her the opportunity to participate by telephone or skype, or explaining to her that taxi fares could be reimbursed.  

11.      Therefore I find that the First-tier Tribunal’s decision was made in error of law for the above reasons, and I set the decision aside.

12.      It is not necessary for me to deal with any other error of law that the tribunal may have made. The appellant may raise any relevant issues at the next hearing before the First-tier Tribunal.

Next steps

13.      I am not in a position to re-make the decision under appeal. There will need to be a fresh hearing before a new First-tier Tribunal in accordance with my directions above.

14.      In the light of my conclusions on the appeal, it follows that the First-tier Tribunal should consider how it can facilitate the appellant’s participation in the next hearing and take such steps as it considers reasonable to do so.  I do not make any specific directions in that respect as I am aware that what is available varies across the different tribunal regions.  One possibility is that the file might be transferred to a different region in order to enable a skype or telephone hearing.  That is ultimately a matter for the District Judge of the First-tier Tribunal

15.      I urge the appellant to make every effort to participate in the hearing.

16.      I should make it clear that I am making no finding about nor expressing a view on the appellant’s entitlement to disability living allowance.  That is for the new tribunal to decide. 

Signed on the original                                           Kate Markus QC

on 26 February 2015                                              Judge of the Upper Tribunal