Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CDLA/2011/2014

ADMINISTRATIVE APPEALS CHAMBER

Before : M R Hemingway: Judge of the Upper Tribunal

Decision: The decision of the First‑tier Tribunal sitting at Worcester on 7 February 2014 under reference SC/002/13/02995 involved an error of law and is set aside.

The appeal is remitted for determination at an oral hearing before a completely differently constituted tribunal.

This decision is made under section 12(1), 12(2)(a) and 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

Subject to any later directions by a district tribunal judge of the First‑tier Tribunal, the Upper Tribunal directs as follows:

(1) The new hearing shall be an oral hearing. It shall take place before a completely differently constituted tribunal to that which considered the appeal on 7 February 2014.

(2) The appellant is reminded that the new tribunal can only deal with his situation as it was down to 16 October 2013 (the date of the original decision of the Secretary of State under appeal) and cannot deal with any changes after that date.

(3) If the parties have further written evidence to put before the tribunal this should be sent to the appropriate tribunal office within one month of the issuing of this decision.

(4) The new First‑tier Tribunal should have regard to this decision of the Upper Tribunal.

REASONS FOR DECISION

Decision in Summary

1. This is the appellant’s appeal to the Upper Tribunal against the decision of the First‑tier Tribunal (F‑tT) dated 7 February 2014. My decision is that the F‑tT’s decision involved an error of law. I allow the appeal to the Upper Tribunal and set aside the F‑tT’s decision. The appeal against the Secretary of State’s decision of 16 October 2013 will have to be re-heard by a new tribunal.

The background

2. The appellant was born on 28 April 1960 and was, as at the date of decision, aged 53 years. His history discloses a number of health problems including arthritis, a head injury, spinal damage, dyslexia, chest pain, an irregular heartbeat, depression, hypertension and alcohol misuse.

3. The appellant first claimed disability living allowance in 2010. In so doing he mentioned a range of health difficulties the symptoms of which, he said, included pain on exertion, blackouts, dizziness and panic attacks. He mentioned having been physically attacked and injured in 2006. He said that his ability to walk was very limited and that he required guidance or supervision when walking outdoors in unfamiliar places. He also asserted a range of care and supervision needs and said that he would not be able to prepare and cook a main meal for one. On 22 July 2010 the respondent obtained a medical report from the appellant’s GP which indicated that he had a large alcohol intake, had been the victim of an assault in 2006, suffered from low mood and had a PHQ9 score of 20. However, the GP expressed the view that he was able to self‑care and get about. The respondent went on to conclude, on 28 July 2010, that he was not entitled to disability living allowance from and including 30 April 2010 (the date he was treated as having claimed). The respondent subsequently obtained a report prepared by a healthcare professional, on this occasion a registered medical practitioner, in relation to possible entitlement to employment and support allowance. That report is dated 6 August 2008 and states that the medically identified conditions were anxiety and depression and alcohol misuse. The report did indicate a number of mental health difficulties. It was commented that the appellant “has a moderate mental health condition affecting the ability to cope with a number of activities of daily living” and it was suggested that his condition “should improve significantly within 12 months”. The respondent reconsidered the decision on 13 October 2010, taking into account amongst other things the content of that report, but did not alter it. The appellant appealed to the First‑tier Tribunal and, on 7 January 2011, that tribunal allowed his appeal and decided he was entitled to the lower rate of the mobility component and the lowest rate of the care component from 30 April 2010 to 29 April 2013.

4. For reasons which are not readily discernible the appellant did not seek a renewal of that award. Accordingly it expired. However, very shortly after its expiry, in fact on 23 May 2013, he made a fresh claim for disability living allowance. In his claim pack he made quite similar contentions regarding his various ailments and disabilities to those he had made in 2010. He again claimed to have a very limited ability to walk coupled with a need for guidance or supervision when out of doors. Once again, he claimed to have substantial care and supervision needs. A GP report dated 24 July 2013 was obtained. That report indicated that the disabling conditions were neuralgic pain, head injury and possible depression/PTSD related to that and insomnia. There was history of his having had a heart attack. The respondent decided to have the appellant medically examined so that a further report could be prepared. Accordingly, he was examined by one Dr. Cadh on 3 October 2013 and a report was produced. According to Dr. Cadh, the appellant had slight impairment of his shoulders and lower limbs. There was slight impairment of his cervical and lumbar functions. He would be able to walk 200-250 metres prior to the onset of severe discomfort. He would be able to self‑care. He did not appear to have any significant mental or cognitive impairment. Significant disability was, thought Dr. Cadh, unlikely.

5. In light of the above the respondent decided, on 16 October 2013, that the appellant was not entitled to either the mobility component or the care component of disability living allowance. Dissatisfied, the appellant appealed.

The appeal to the First‑tier Tribunal

6. It appears that the appellant did not complete a standard enquiry form which asked, amongst other things, whether or not he wanted an oral hearing. When sent a reminder he responded by indicating he did not want such a hearing. The respondent did not seek an oral hearing. The appeal was determined on the papers. The F‑tT dismissed the appeal. It subsequently, upon request, produced its statement of reasons for decision (statement of reasons).

The appeal to the Upper Tribunal

7. The appellant, who was by then represented by the Luton Law Centre, applied for permission to appeal to the Upper Tribunal on the basis that the F‑tT had erred in law in failing to explain why it was “not renewing” the previous award of disability living allowance. I granted permission to appeal. In so doing I noted that the F‑tT had not been dealing with a decision made on a renewal claim but, rather, one made upon a fresh claim shortly after the expiry of the earlier award. In granting permission, I said this:

“ 4. In my judgment, it is arguable that the F‑tT erred in law in failing to have any regard to the previous award and in failing to explain why it was making a decision about entitlement which differed from that. The details of the previous award were before the F‑tT but were not commented upon by it. However, the parties may care to comment upon the following question:

(a) Is the approach suggested in R(M) 1/96 and more recently restated in BP v Secretary of State for Work and Pensions [2009] UKUT 90 (AAC) applicable in a case such as this where the decision was not actually one made in relation to a renewal claim?

(b) Were the findings of the F‑tT sufficient, in any event, to demonstrate that, whatever the situation obtaining in relation to the earlier claim, as at the date of decision the requisite statutory test for disability living allowance was not met such that the failure to refer to the earlier award is not material.”

8. I varied the usual directions slightly by inviting the appellant’s representatives to lodge some written submissions first of all. This was because they had said they did not have a complete set of appeal papers so this represented an opportunity for them to make any further points, at an early stage, arising out of papers they said they had not seen. There was then provision for the Secretary of State to file his submission and for the appellant’s representatives to make a final reply.

9. In fact, the appellant’s representatives provided submissions which had been settled by counsel. Those submissions, in summary, contended that the fact that the previous award had expired, such that the F‑tT was not concerned with a decision made on renewal claim, made no difference to the principle that some explanation ought to be given by an F‑tT in circumstances where it is making a decision which differs from a previous award. This was not, it was suggested, a case where the findings of fact in themselves provided sufficient explanation. Further, it was suggested that the F‑tT had erred in failing to consider whether, notwithstanding the appellant’s not seeking one, an oral hearing ought to have been convened in light of the previous award and the previous favourable tribunal determination.

10. The respondent provided a written submission in which he indicated that the appeal was supported. The respondent, as had the appellant’s counsel, pointed to the very short period between the expiry of the first award and the fresh claim. Against that background, said the respondent, the F‑tT’s accepted failure to provide a brief explanation as to why it was reaching a decision which differed from the earlier award amounted to an error of law. The respondent went further and contended there to be a further error of law in the F‑tT’s decision on the basis that it had failed to comment upon or say what it made of the appellant’s own evidence. Of course, there was no oral evidence, but that is to be taken as a reference to the written evidence the appellant had provided in documents such as his claim packs and notices of appeal relating to the earlier and current claims. Finally, said the respondent, it was “arguable” that the F‑tT should have adjourned and invited the appellant to attend an oral hearing particularly as it was seemingly of the view that his written evidence did not support an award of disability living allowance.

11. The appellant’s representatives, perhaps not surprisingly in the circumstances, have not offered any further comments.

12. It is, then, against the above background, that I must now determine this appeal.

Discussion

13. I have, first of all, considered whether I should exercise my discretion to hold an oral hearing of this appeal before the Upper Tribunal. However, the appellant’s counsel expressed the view that the appeal could be dealt with satisfactorily on the papers. Those representing the appellant have not subsequently indicated any alteration to that stance. The respondent has not sought an oral hearing. The issues raised by this appeal have been sufficiently ventilated in the written submissions before me. Accordingly, I have concluded that no such hearing is required.

14. I shall, next, consider whether the F‑tT erred in failing to adjourn in order to make provision for an oral hearing. The appellant’s counsel contends that the F‑tT “gave no consideration” as to whether or not it should convene such a hearing and suggests that it was incumbent upon it to consider doing so in light of the previous successful appeal.

15. Of course, it was open to the F‑tT to adjourn and to direct an oral hearing if it wished. The relevant parts of the Tribunal Procedure (First‑tier Tribunal) (SEC) Rules 2008 read as follows:

“Decision with or without a hearing

27. - (1) Subject to the following paragraphs, the Tribunal must hold a hearing before making a decision which disposes of proceedings unless –

(a) Each party has consented to, or has not objected to, the matter being decided without a hearing; and

(b) the Tribunal considers that it is able to decide the matter without a hearing.”

and

Overriding objective and the party’s obligation to co‑operate with the Tribunal

2. - (1) The overriding objective of these rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes –

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d) using any special expertise of the Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Tribunal must seek to give effect to the overriding objective when it –

(a) exercises any power under these Rules;

(b) interprets any rule or practice direction.”

16. The F‑tT did make reference to its decision not to adjourn with a view to an oral hearing in its decision notice. It said this:

“Neither party requested an oral hearing. Having considered the appeal schedule of evidence the Tribunal decided it was able to decide the appeal without an oral hearing and it would be just to do so.”

17. In its statement of reasons, though, it simply observed that the appellant had chosen “to have his appeal determined on the papers”.

18. Although the explanation offered in the decision notice for proceeding on the papers was not repeated in the statement of reasons, I do not detect any inconsistency between the two. This is because what is said in the statement of reasons is merely a record of the preference indicated by the appellant. The F‑tT was not saying, in my view, in the statement of reasons that it proceeded on the papers solely because that was the appellant’s wish. There being no inconsistency it is appropriate to read the two documents together in asking whether the F‑tT did give sufficient consideration to adjourning for an oral hearing.

19. The appellant had made his preference clear. The F‑tT did not remind itself of the relevant rules of procedure referred to above (rules 2 and 27) but its reference to its having concluded that it would be “just” to proceed without such a hearing does at least suggest it had in mind the sorts of factors contained within rule 2 regarding the overriding objective and rule 27(1)(b). There have been cases where, on specific facts, it has been concluded that a tribunal has erred in failing to consider adjourning for an oral hearing or failing to actually do so. However, although much is made of it in the appellant’s written submissions, I do not think it is right to say that the mere fact there had been a previous award based on a decision of a previous tribunal means that this was a case where there was some strong or unusual factor militating towards the holding of an oral hearing in circumstances where the parties had not sought one. Accordingly, whilst it would have been better if the F‑tT had said more by way of explanation, I do not consider it erred in failing to adjourn for an oral hearing or in failing to provide adequate reasons for its decision not to. I reached this view despite the respondent’s representative considering it to be arguable that it had so erred.

20. There is then the contention, in fact made by the respondent, that the F‑tT erred in failing to have regard to the appellant’s written evidence. This was not a point taken on behalf of the appellant. The F‑tT did note, at paragraph 2.1 of its statement of reasons, that it had the appellant’s claim form, with respect to the claim which has led to this appeal, before it. It also noted, at paragraph 2.5 that it had the appellant’s previous claim pack before it. It referred to contentions made by the appellant regarding certain of his health problems at paragraphs 3.5 and 3.6. It referred, in a passage from 3.15 to information the appellant had given when examined by the health care professional. It made a further reference, on this occasion to things not said by the appellant in his claim pack, at paragraph 3.26.

21. I would accept that the F‑tT’s references to information provided by the appellant were not extensive. Nevertheless, and despite the very fair and balanced view taken on behalf of the respondent in this appeal to the Upper Tribunal, I am satisfied from the above references that the F‑tT did consider and did have in mind what the appellant had had to say about his difficulties and that its statement of reasons is sufficient to confirm that. Nor do I think it can be said that the F‑tT made such inadequate comment upon the appellant’s own evidence that this means it cannot be said that it has sufficiently explained its findings and conclusions. It might have said more if it wished but it was not obligated to do so.

22. This brings me on to what has been the main issue in this appeal. That is whether the F‑tT erred in law in failing to make reference to the previous award of disability living allowance notwithstanding that it was not dealing with a decision made upon a renewal claim.

23. The F‑tT certainly did have information regarding the previous award before it. It had the original claim pack to which it referred in its statement of reasons and it also had the decision notice issued by the tribunal, allowing the appeal, along with some further documents relating to that application and appeal including a GP report of 22 July 2010.

24. The F‑tT, though, did not specifically refer to the previous award. It did, as indicated, mention it had a previous claim pack before it but did not, in fact, acknowledge that there had been a previous award. It made no reference to the earlier tribunal decision making that award.

25. In seeking permission to appeal to the Upper Tribunal, the appellant’s representatives relied upon the very well known and much quoted decision in R(M) 1/96. The Commissioner deciding that case, having summarised some earlier case law, said this:

“ 15. It does however seem to me to follow from what is said by the Court of Appeal in Evans, Kitchen and Others, that while a previous award carries no entitlement to preferential treatment on a renewal claim for a continuing condition, the need to give reasons to explain the outcome of the case to the claimant means either that it must be reasonably obvious from the tribunal’s findings why they are not renewing the previous award, or that some brief explanation must be given for what the claimant will otherwise perceive as unfair. This is particularly so where (as in the present and no doubt many other cases) the claimant points to the existence of his previous award and contends that his condition has remained the same, or worsened, since it was decided he met the conditions for benefit. An adverse decision without understandable reasons in such circumstances is bound to lead to a feeling of injustice and while tribunals may of course take different views on the effects of primary evidence, or reach different conclusions on the basis of further or more up to date evidence without being in error of law, I do not think it is imposing too great a burden on them to make sure that the reason for an apparent variation in the treatment of similar relevant facts appears from the record of their decision.

16. Relating this to attendance or mobility cases if a tribunal in a decision otherwise complying with the requirements as to giving reasons and dealing with all relevant issues and contentions, records findings of fact on the basis of which it plainly appears that the conditions for benefit are no longer satisfied (e.g. a substantial reduction in attendance needs following a successful hip operation, or the claimant being observed to walk without discomfort for a long distance) then in my judgment it is no error of law for them to omit specific comment on an earlier decision awarding benefit for an earlier period. Their reasons for a different decision is obvious from their finding. In cases where the reason does not appear obviously from the findings and reasons given for the actual conclusion reached, a short explanation should be given to show that the fact of the earlier award has been taken into account and that the tribunal have addressed their minds for example to any express or implied contention by the claimant that his condition is worse, or no better, then when he formerly qualified for benefit. Merely to state a conclusion inconsistent with a previous decision, such as that the tribunal found the claimant ‘not virtually unable to walk’ without stating the basis on which this conclusion was reached, should not be regarded as a sufficient explanation …”

26. It is clear, from the above passage, that the Commissioner deciding that appeal was faced with a situation where the tribunal’s decision had been made in relation to a renewal claim. There have been some subsequent decisions of the Commissioners and the Upper Tribunal dealing with similar matters.

27. In this context, Deputy Commissioner Ovey (as she then was), in CDLA/4032/2006 allowed an appeal on the basis that the tribunal had failed to address an earlier award when dealing with a renewal decision in circumstances where it lacked documentary evidence regarding the earlier award. In CDLA/2372/2007, the same Deputy Commissioner (as she then was) dealt with a case where there had been a previous award of disability living allowance but it was not clear whether the claim which had led to the decision under appeal was, in fact, a renewal claim or (as here) a fresh claim made shortly after the expiry of an earlier award. In these circumstances it was held that the tribunal had erred in proceeding without seeking to obtain papers relating to the earlier award and, given that it lacked such papers, had failed to adequately explain why it was reaching a decision which differed from that previous award. No distinction was made between a renewal claim and a claim made shortly after a previous award had expired.

28. In this appeal there is a slight difference on the facts because the F‑tT did have the documents relating to the earlier award it simply did not say very much about them. Further, in this appeal it is clear that the F‑tT was not dealing with a decision made upon renewal.

29. In granting permission to appeal I asked the parties to comment upon whether the fact that this appeal did not relate to a renewal decision meant that the reasoning in R(M) 1/96 was not applicable. It seems to me that the point in R(M) 1/96 was simply that a claimant should understand, from the reasons given, why an appeal has failed and, as a part of that, such a claimant is entitled to know why a tribunal is departing from a previous award. Looked at from that perspective it seems to me that there is no reason to draw a distinction between an application for a renewal of a previous award and an application made very shortly after a previous award has expired. To distinguish in that way would, in my view, be artificial. However, whether a tribunal will need to explain departure from a previous award will, nevertheless, as with a renewal claim, be dependent upon the facts. Here, the earlier award was a relatively recent one (it’s taking effect from 30 April 2010). It had expired on 29 April 2013 which was a matter of only some three weeks or so prior to the new claim having been made. The appellant, as noted above, in pursuing his new claim was making similar contentions with respect to his ailments and symptoms that he had made in connection with his 2010 claim. Putting all of that together, given that the F‑tT did have the material relating to the original claim before it, I do conclude, on the particular facts of this case, that it erred in not explaining why it was reaching a decision on appeal which differed from the previous, albeit expired, award.

30. It will not, though, always be the case that a tribunal will err in law in not referring to an earlier award in circumstances where it is not a renewal decision which is in issue. It might be, for example, that the earlier award was made many years ago such that it can be said to have little bearing on the up to date position. It might be that a tribunal is not made aware of an earlier award by either party in which case it can hardly be criticised for not having regard to it, particularly in circumstances where an appellant or representative knows about it but does not mention it. It might be that an appellant’s medical situation has obviously changed between the earlier award and the decision on a subsequent new claim.

31. On the facts of this case, however, the appeal to the Upper Tribunal does succeed and I do set aside the F‑tT’s decision. Neither party has invited me to go on to remake the decision myself. Indeed, both, in written submissions, have suggested remittal to the F‑tT for further fact finding. That, then, is the course of action which I take. I do note that in written submissions the appellant’s representatives asked for certain specific directions to be issued. Those related to production of further documents concerning the earlier tribunal determination such as the record of proceedings and the granting of time for the appellant to obtain any further medical evidence upon which he may wish to rely directed to addressing any change between the position in 2010 and the position now. I do not consider it necessary to make any such directions other than one making general provision for the filing of further documentary evidence if that is what the parties wish.

32. There will now be a fresh hearing before a new and differently constituted F‑tT. The new F‑tT will not be bound by the findings of the first F‑tT. It will have to evaluate the evidence for itself and reach its own findings and conclusions based upon that evidence. It will wish to bear in mind the 2010 award and the documentation relating to it which is already available. It will have to consider any further documentary evidence which might be lodged and any further oral evidence it receives. In the event of its reaching a decision different to the 2010 award it will be required to offer some explanation as to why but it should not regard itself as being bound, in any sense, by the fact of the earlier award.

(Signed on the original)

M R Hemingway

Judge of the Upper Tribunal

Dated: 24 February 2015