DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal by the Secretary of State, the appellant in these proceedings.

 

The decision of the Bradford East First-tier Tribunal dated 16 May 2012 under file reference SC013/11/01976 involves an error on a point of law. The First-tier Tribunal’s decision is set aside. The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the respondent claimant’s appeal against the Secretary of State’s decision dated 14 February 2011 is sent back to be re-heard by a different First-tier Tribunal, subject to the Directions below. 

 

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

 

DIRECTIONS

 

The following directions apply to the hearing:

 

(1) The appeal should be considered at an oral hearing. 

 

(2) The new First-tier Tribunal should not involve the tribunal judge or members previously involved in considering this appeal on 16 May 2012.

 

(3) The claimant is reminded that the tribunal can only deal with the circumstances of the appeal (including M’s health and his care and mobility needs) as at the date of the original decision by the Secretary of State under appeal (namely 14 February 2011).

 

(4) If the claimant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the Leeds HMCTS regional tribunal office within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were in February 2011, i.e. at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).

 

(5) The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

 

(6) The Secretary of State should be represented at the re-hearing by a presenting officer, as was the case on the last occasion.

 

(7) An Urdu interpreter will need to be booked for the hearing. M’s mother should make it clear during the re-hearing if she has any concerns about the quality of the translation being provided.

 

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

 

The Upper Tribunal’s decision in summary

1. This is an appeal to the Upper Tribunal by the Secretary of State. It is against the majority decision of the First-tier Tribunal (FTT), which had allowed the claimant’s appeal against a refusal of his claim for disability living allowance (DLA). The claimant is a young boy, M, who is now aged 9. M’s mother is his appointee.

 

2. The Secretary of State is therefore the appellant before the Upper Tribunal and the claimant is officially the respondent in these proceedings. For convenience, and to avoid confusion, I refer to the parties as simply “the Department” and “M”.

 

3. I allow this appeal by the Department. The decision of the First-tier Tribunal involves an error on a point of law. I therefore set aside the tribunal’s decision.

 

4. The case now needs to be reheard by a new FTT, which will have to start again. I cannot predict what will be the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal by the Department has succeeded on a point of law is no indication as to the likely or possible outcome of the re-hearing of the appeal before the new FTT. That is because that new appeal has to be decided according to the facts. 

 

5. So the new tribunal may reach the same, or a different, decision to that of the previous tribunal. It all depends on the findings of fact that the new tribunal makes about M and his care and mobility needs.

 

The background to the case

6. M’s mother applied for DLA on his behalf in January 2011. M is a young boy with a range of problems, documented in the papers in the bundle. The Department refused that claim for DLA on 14 February 2011. That date is accordingly an important date, as M’s needs must be judged by the position at that time (not as they are now, when they may be more or fewer). M’s mother appealed.

 

7. After an adjournment, the FTT heard M’s appeal in Bradford on 16 May 2012. The FTT’s decision was in two parts:

 

(i) by a majority, to allow M’s appeal as regards mobility, ruling that M was entitled to the lower rate of the mobility component of DLA for the period from 20.01.2011 to 17.06.2013;

(ii) unanimously, to dismiss M’s appeal as regards the care component.

 

8. The Department then appealed to the Upper Tribunal. District Tribunal Judge (DTJ) Holmes gave the Department permission to appeal.

 

The proceedings before the Upper Tribunal

9. I held an oral hearing of the Department’s appeal in Bradford on 20 March 2013. Mr H. James attended on behalf of the Secretary of State. M’s mother attended, accompanied by her sister. Mr Mahmood acted as official court interpreter in Urdu. I am grateful to them all for their assistance.

 

10. At this stage I must just mention two matters about the proceedings during the hearing. First, my sense (and it is no more than an impression) at the hearing was that M’s mother (quite understandably) was better (and/or more confident) at understanding spoken English than speaking it for herself. Second, shortly after the hearing had finished the tribunal clerk advised me that M’s mother had approached him outside the hearing room and explained that she was unhappy with the quality of interpretation that had been provided. She did not say that she had been unable to follow the proceedings. Rather, she was unhappy especially in terms of the translation of her answers in Urdu into English. I cannot be the judge of that complaint, having no proficiency in Urdu. I simply make the following three points for the benefit of M’s mother.

 

11. First, it is important, as my clerk advised, that any such matter is raised during the course of the hearing itself, when there is time to address it. Second, the nature of an appeal before the Upper Tribunal is confined to issues of law. My understanding is that M’s mother was seeking to make detailed submissions about M’s health and difficulties rather than legal submissions. That is confirmed by my note of the proceedings. To that extent I should reassure her that there has been no real disadvantage either to her or to M, as I am not the judge of the facts in this case. In other words, if I missed out on some of the factual details, due to poor translation, it does not matter for present purposes – because my role is limited to deciding legal issues. Third, for the reasons that follow, this case will in any event have to go back for a fresh hearing before a new FTT. That is where the facts will be explored and decided. That is also the place where it is essential that the quality of interpretation is good enough.

 

The respective arguments put by the Department and M’s mother

12. Mr James in short relied on the grounds of appeal as set out by Ms Pepper of the Department in the papers. The Department essentially had two points.

 

13. First, the Department said that the FTT majority decision to make an award of the lower rate of the  mobility component was flawed because the majority had failed to deal adequately with the evidence on file from the ENT surgeon (at p.120). That letter, written about 4 months before the date of the decision, indicated that M’s hearing was basically satisfactory and within normal limits, although it worsened when he had an ear infection. So, it is said, the evidence did not support the claimed severe hearing problem.

 

14. Second, the Department argued that the FTT majority had failed to have proper regard to the principle set out in section 73(4A) of the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”). In summary this is the “substantially more” test, which compares a claimant child with another child of the same age without the disability in terms of their need for guidance and supervision when out and about.

 

15. Mr James sensibly and rightly took no issue with the majority of the FTT’s decision to rely in part on the later minor road traffic accident in which M was injured. Although this happened after the date of the decision, it could be indicative of issues that were live at the time of that decision.

 

16. M’s mother had previously had some help from a representative before the FTT but it appears that she was not able to arrange any assistance for the Upper Tribunal hearing. Both her written and her oral comments were understandably focussed on the problems that M had and the difficulties that these posed for her as his carer. She was not really in a position to argue the legal points raised by Mr James for the Department. I therefore looked at Mr James’s arguments with special care.

 

The reason why there is an error of law in the FTT’s decision

17. DTJ Holmes gave permission to appeal to the Department because he thought the majority’s reasoning may not have been sufficient to justify their decision. That is precisely why I am allowing the Department’s appeal, having scrutinised Mr James’s arguments. The majority’s decision goes wrong in law in the two ways identified in the Department’s submissions.

 

18. First, the majority of the FTT needed to make clear findings of fact about the extent of M’s hearing problems and their impact. This included dealing with the specialist’s evidence. They failed to do so.

 

19. Second, at the date of the decision M was still only 7. The FTT majority did not explain how they had taken account of the requirement in section 73(4A) of the 1992 Act, as amended by section 53(2) of the Welfare Reform Act 2007. This provides that a child under the age of 16 does not qualify for the lower rate mobility component of DLA, even if they meet the test in section 73(1)(d) of the 1992 Act “unless–

 

(a) he requires substantially more guidance or supervision from another person than persons of his age in normal physical and mental health would require, or

(b) persons of his age in normal physical and mental health would not require such guidance or supervision."

 

20. Those two faults amount to an error of law by the FTT.

 

The Upper Tribunal’s decision

21. I therefore allow the Secretary of State’s appeal. The tribunal’s decision is accordingly set aside.

 

What happens next: the new First-tier Tribunal

22. The Department’s written submission to the Upper Tribunal by Ms Pepper invited me to re-make the decision in the terms that she says the FTT should have done – in other words to make a decision that M is not entitled to either component of DLA.

 

23. At the oral hearing before me in Bradford, Mr James proposed that, if the Department’s appeal was to be allowed as he argued, the most appropriate course of action would be to direct a re-hearing. I agree with Mr James. I say that for two reasons.

 

24. First, there needs to be more fact-finding in this case, which is best done before the three-person FTT. In particular, the new tribunal will need to consider the combined impact of M’s hearing problems and his behavioural difficulties.

 

25. Second, I am conscious that although she would have preferred that the Department had not brought the present appeal, M’s mother is also not entirely satisfied with the previous FTT’s decision. She feels that the FTT failed to take sufficient account of M’s care needs arising in particular from his behavioural problems. She also told me, through Mr Mahmood, that the interpreter at the first FTT hearing had not been very good and did not put her case across fully.

 

26. So there will need to be a fresh hearing of the appeal before a new FTT. Although I am setting aside the previous FTT’s decision, I should make it clear that I am making no finding (or even expressing any view) on whether or not M is entitled to DLA and, if so, to which component(s) and at what rate(s), or for what period. That is a matter for the good judgement of the new tribunal. That tribunal must review all the relevant evidence and make its own findings of fact. 

 

27. In doing so, the new FTT will of course have regard to section 12(8)(b) of the Social Security Act 1998. This states that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added). This means in this case that unfortunately the new FTT will have to focus on M’s circumstances as they were at the time of the relevant decision(s) under appeal (in February 2011, when he was 7), and not the position as at the date of the new hearing (by which time he will be about 10).

 

28. On the particular issue of the question of possible entitlement of a young child to the lower rate mobility component, I draw the new tribunal’s attention to the helpful guidance of Mrs Commissioner Parker (as she then was) in the unreported decision CSDLA/91/2003 (at paragraphs 5-7, emphasis added):

 

‘5. For example, with respect to lower rate mobility component, a claimant’s disablement may give rise to a need for guidance or supervision which is of a type beyond that which is expected in relation to a normal child of the same age. Thus, although one would certainly have to accompany any ten-year-old in unfamiliar surroundings, it would usually be sufficient to walk beside a child in normal health simply as a companion and guide. If more is reasonably required by the claimant and is due to his disablement, then the question is whether this is substantially in excess of what could be expected in relation to a normal child of the same age and is required for most of the time. This is a matter of judgement for a tribunal. However, as with all matters of judgement, it must be based on sufficient underpinning findings of primary fact. 

 

6. For entitlement to the lower rate mobility component, ability to use familiar routes is to be ignored, but not an inability to use such routes if it derives from the claimant’s physical or mental disability and fits the additional criteria applicable to children. In CDLA/42/94 the Commissioner said that supervision meant “monitoring the claimant or the circumstances for signs of a need to intervene so as to prevent the claimant’s ability to take advantage of the faculty of walking being compromised”, and pointed out that such action, if established, is not precluded from being supervision because the claimant derives reassurance from the presence of another.

 

7. The tribunal erred in emphasising that most “eleven year olds” (but in fact he was ten years old at the date of the adverse decision under appeal, which the tribunal has overlooked) are hardly ever on unfamiliar routes without an adult present. The tribunal is almost certainly right that any eleven year old on an unfamiliar route is at some risk. The critical question is therefore whether, when the claimant is out walking, on account of his disablement he requires extra guidance and supervision which is substantially in excess of those of other children of his age. His parents assert that he walks out in front of cars and has to be pulled back.  That would not be a precaution ordinarily required for a ten year old child in normal health. What he does on familiar routes is evidentially relevant to what he might do on unfamiliar routes.”

 

Conclusion

29. I conclude that the decision of the First-tier Tribunal involves an error of law.  I allow the Secretary of State’s appeal and set aside the decision of the Bradford tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)).  My decision is also as set out above.

 

 

 

Signed on the original Nicholas Wikeley

on 22 March 2013 Judge of the Upper Tribunal