Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The appeal is allowed.

The decision of the tribunal given at Glasgow on 24 November 2014 is set aside.

The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal.

REASONS FOR DECISION

1.  The parties have consented to a decision without reasons, but I have decided to give reasons because I want to reiterate a point which has been made in a number of disability living allowance cases and which seems to me to apply equally in appeals concerning personal independence payments.

2.  The claimant has asthma, anxiety, plantar fasciitis, plantar fibromatosis, hand and finger pain, and tinnitus.  Following a face to face consultation with a Health Care Professional on 2 July 2014, a decision was made on 7 August 2014 awarding the claimant the mobility component of Personal Independence Payment at the standard rate, but refusing an award of the daily living component at either rate.

3.  The claimant appealed on 23 September 2014, challenging the daily living component descriptors which had been applied to her by the decision maker in respect of preparing food (Activity 1), Washing and Bathing (Activity 4), and Dressing and Undressing (Activity 6).  In relation to Mobility Activities, the claimant asserted that she could not repeatedly walk more than 20 metres (see Regulation 4(2A)(c) of the Social Security (Personal Independence Payments) Regulations 2013), and was entitled to 12 points under descriptor 2(e) of the Regulations, and therefore to mobility component at the higher rate.

4.  The award was maintained on reconsideration, so that the appeal proceeded to a hearing on 24 November 2014.  The Statement of Reasons records:

“Mr R …. appeared on behalf of the Secretary of State and indicated that the Appellant was in receipt of carer’s benefit which may be affected by any decision the Tribunal took today.  The Tribunal, itself, having considered the papers in advance felt bound to advise the Appellant that the existing standard rate award may be at risk in the event that the Tribunal took an adverse decision and suggested to the Appellant that she may wish to consider withdrawing her appeal in order to safeguard the existing award.  This was explained to her at some length.  It was suggested that she may wish to obtain proper representation.  In the event, she declined to reconsider the matter or to obtain representation and wished to proceed with appeal and the hearing.”

The tribunal then decided to remove the mobility component which had been awarded by the decision maker, giving the following reasons for doing so:

“The Tribunal confirmed the existing awards for daily living, however, it had significant concerns as to the Appellant’s lack of credibility with regard to her claims for mobility.  She was able to walk around hospital departments and although she stated that she could walk more than 20 m. she preferred to walk less than that distance because of the subsequent effect it would have on her. She sat at the hearing for 45 minutes and without difficulty and albeit not then standing was able to walk out of the room without difficulty.  The least credible aspect of her evidence was her claim that her walk to her GPs would be around 28 m which was coincidentally the same distance as observed by the Health Consultant.  The Tribunal did not believe her that the GP surgery was as close to her home.  It is a matter of judicial knowledge (albeit not put to her) that the distance between her home and Clydebank Health centre where her GP is situated by taking the shortest route would be in the order of 2 miles.  She took a caravan holiday in Skye.  It was inconceivable that in doing so she did not walk.  In the circumstances the award under 2(c) for mobility is regarded by the Tribunal as singly inappropriate and in view of her plantar fasciitis substituted an award under 2(b) in its stead [“can stand and then move more than 50 metres but no more than 200 metres, either aided or unaided”].”

5.  The claimant applied for permission to appeal on the ground that she had not in fact told the tribunal that she walked to her G.P.’s  surgery, but had said that her husband dropped her off there by car.  She also complained that the tribunal had made assumptions about her holiday in Skye, and asserted that she had gone there for the purpose of sightseeing.  The claimant stated that, contrary to the tribunal’s findings, she did not limit her walking as a matter of preference, but because of pain in her feet.  Finally, the claimant submitted that the tribunal failed to consider whether she could ‘repeatedly’ mobilise the distances specified in Activity 2 of the mobilising descriptors, as required by Regulation 4.  Permission to appeal was given by Judge Gamble on 6 February 2015.

6.  As the Secretary of State’s representative has helpfully accepted in his submission of 10 March 2015, each of the grounds of appeal has been made out.  It is inconceivable that the claimant would have told the tribunal that the distance from her home to her G.P.’s surgery was 28 metres when it is in fact nearer two miles and the tribunal’s admitted failure to put to her the result of their researches deprived her of the opportunity to correct any misunderstanding about how she got to the surgery.  A condition such as plantar fasciitis, coupled with plantar fibromatosis, could be expected to impose severe restrictions on the claimant’s walking ability.  The tribunal’s observation of the claimant  walking out of the tribunal room after sitting for 45 minutes could not give them any useful assistance in determining how far the claimant could move after standing, and the tribunal gave no satisfactory reason for rejecting the Health Care Professional’s assessment of the claimant’s ability to stand and move unaided as being between 20 and 50 metres.  Similarly, the tribunal ought to have asked the claimant about what she did while on holiday before reaching conclusions on the basis of assumptions about her activities.  Finally, the Statement of Reasons is conspicuous by the lack of any reference to the matters which need to be considered under Regulation 4, even though the appeal in relation to mobility  was brought specifically on the basis that the Health Care Professional’s assessment of the distance which the claimant could mobilise did not take proper account of her inability to do so repeatedly.

7.  However, the point I want to make is this.  A number of disability living allowance decisions have drawn attention to the pitfalls of tribunals making decisions which are less favourable to a claimant than the decision under appeal.  Even if the issue which the tribunal takes it upon itself to consider is one which is raised by the appeal (which it was in this case) and the claimant is given an adequate opportunity of considering whether to proceed the appeal, the claimant will not have had advance notice of the issue, as would be the case if the Secretary of State had been required to give grounds for opposing the appeal under Rule 24(2)(e) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008.  In R(IB) 2/2004 it was held that a claimant had to be given sufficient notice to enable the claimant to prepare his or her case on the new issue and, if the issue is not dealt with in the submission to the tribunal, it may be extremely difficult for the tribunal to give the claimant sufficient notice of the issue without appearing to compromise its independence.  In CDLA/884/2008 it was said:

“Tribunals need to be aware of the dangers of being both prosecutor and judge, one of which is the risk of making errors unprompted by the parties.  Such errors are too common and are contributing significantly to the caseload of the Commissioners ….There are other risks in being both prosecutor and judge.  The most obvious is that there can be a perception that the tribunal has prejudged the case … a tribunal is in a difficult position.  If it gives the claimant too robust a warning at the beginning of the hearing, it runs the risk of giving the impression of having prejudged the case.  If it does not give such a robust warning, the warning may not adequately convey to the claimant the case he or she needs to consider resisting with the consequence that a decision not to withdraw the appeal, or not to ask for an adjournment, is not fully informed.  This is a powerful reason for tribunals refraining from making decisions less favourable to claimants than the decisions being challenged, except in the most obvious cases (e.g. where the evidence is overwhelming or the facts are not in dispute and no element of judgment is involved or where the law has been misapplied by the Secretary of State) or after an appropriate adjournment.”

8.  Speaking for myself, I can see no reason why the tribunal in this case should have wanted to consider whether the award of mobility component was over-generous.  The claimant’s case for an increase in her award was moderately and cogently argued and consistent with the independent medical evidence.  The award of descriptor 2(c) by the Health Care Professional was fully reasoned, even if the claimant did challenge it on the ground that Regulation 4 of the PIP Regulations was not taken fully into account. Be that as it may, the tribunal’s decision to consider on its own initiative whether to remove mobility component led to precisely the kind of unprompted error envisaged in CDLA/884/2008.  The tribunal’s failure to invite the claimant to put her case with regard to the distance from her home to her G.P.’s surgery and with regard to what she did while on holiday, when she could not possibly know that those matters would be crucial to the tribunal’s decision, deprived the claimant of the opportunity to correct any errors by the tribunal and amounted to serious breaches of the requirement of fairness.

9.  For those reasons, I allow the appeal and give the decision set out above. 

(Signed)

E A L  BANO

Judge of the Upper Tribunal

Date: 13 March 2015