DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeals by the Appellant.

 

The decision of the Port Talbot First-tier Tribunal dated 11 October 2012 under file references SC204/11/03484 and SC204/11/04484 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 decisions under appeal. It therefore follows that the Appellant’s appeals against the Secretary of State’s two decisions dated 15 July 2010 and 22 September 2011 are remitted 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 appeals should be considered at an oral hearing at a venue convenient for the Appellant. 

 

(2) The new First-tier Tribunal should not involve the tribunal judge or other members previously involved in considering this appeal on 11 October 2012.

 

(3) The Appellant is reminded that the tribunal can only deal with the appeal, including her health and other circumstances, as they were at the date of the original decisions by the Secretary of State under appeal (namely 15 July 2010 and 22 September 2011).

 

(4) If the Appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the tribunal office in Cardiff within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decisions 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.

 

 

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 and what happens next

1. The Appellant’s appeal to the Upper Tribunal is allowed. The decision of the First-tier Tribunal involves an error on a point of law. For that reason I set aside the tribunal’s decision.

 

2. The case now needs to be reheard by a new First-tier Tribunal (FTT). I cannot predict what will be the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the re-hearing of the appeal before the new FTT will succeed on the facts.

 

3. So the new tribunal may reach the same, or a different, decision to that of the previous tribunal. It all depends on the various findings that the new tribunal makes.

 

The background to this appeal to the Upper Tribunal

4. The Appellant made two claims for disability living allowance (DLA), each of which was unsuccessful. The first claim was made on 8 June 2010 and was turned down by a decision maker on 15 July 2010; this forms the subject matter of FTT case SC204/11/03484 and Upper Tribunal case CDLA/3056/2013. The second claim was made about a year later on 22 June 2011 and was rejected by the Secretary of State  on 22 September 2011; this is the subject matter of FTT case SC204/11/04484 and Upper Tribunal case CDLA/3060/2013.

 

5. On 11 October 2012 the FTT (quite sensibly) heard both appeals together, dismissing them both. The tribunal issued a single statement of reasons (again, there is nothing wrong with this in principle, providing the two appeals were dealt with separately where appropriate, e.g. as regards the material evidence at the relevant dates). The Appellant appealed to the Upper Tribunal, her representative setting out detailed grounds in her letter of 23 May 2013.

 

The proceedings before the Upper Tribunal

6. In my initial Observations, when giving permission to appeal, I commented as follows:

 

“1. On the face of it, there is so much wrong with these two statements of reasons that it is difficult to know where to start. However, the Appellant’s representative makes a decent start by itemising eight grounds of appeal under a series of bullet points.

 

2. I should explain that I am not at present persuaded by ground 1, about the record of proceedings, for the reason given by the District Tribunal Judge. Nor do I think there is much in ground 5, about the delay in preparing the statement of reasons, again for the reason given by the District Tribunal Judge (although that delay may in itself go some way to explaining the inadequacy of the statements of reasons). However, there is plenty of mileage in the remaining six grounds, which the District Tribunal Judge did not refer to.

 

3. For example, ground 4 concerns the questionnaire by Mr Kane. The fact that the tribunal misspelt his name, while unfortunate, is the least of the problems. The tribunal’s assessment (at [7] of the statement of reasons) suggests they either did not read Mr Kane’s statement, or at least read it properly. Mr Kane’s status was perfectly clear, as he set out carefully in the answer to the first question. So it is hardly surprising that the form included no clinical findings. Claimants, of course, have long been invited to provide evidence from those that know about their problems with daily living, beyond simply professionals involved in their care or treatment (see e.g. p.36 of the DLA1 form, at p.42 of file CDLA/3060/2013). There may well have been reasons to discount Mr Kane’s evidence, or to give it less weight – e.g. he might be seen as being partial and lacking independence (although he did not tick all the “yes” answers in the care grid), or he might be seen as having his judgement clouded in some other way. But to dismiss his evidence because the form did not say who he was (it did), or what qualifications he had (it did not, but he was not asked and that was not the point) and for lack of clinical details (when again that was not the purpose of the form and Mr Kane did not purport to have a relevant professional qualification) is, in a word, nonsense.

 

4. Ground 4, moreover, is not even the strongest ground – for example, grounds 2 (failure to distinguish the two appeals), 3 (failure to find facts or give adequate reasons) and 7 (failure to address challenge to EMP report) are all compelling.

 

5. Credibility, of course, is a matter for the First-tier Tribunal. However, the bare finding in paragraph [15] of the statement of reasons cannot rescue this tribunal decision,

 

6. The Appellant may well not be entitled to disability living allowance from either date in issue in this appeal. That is not for me to judge. However, all this statement of reasons tells me is that she is not so entitled; it does not even come close – given the representative’s careful submissions on file before the tribunal hearing – to explaining why she does not qualify for DLA.”

 

7. I do not usually write in such strong terms. However, the passage of time has not changed my view. Being as charitable as I can, I suspect that a, and possibly the, major factor in the deficiencies identified above is that the tribunal’s statement of reasons was prepared some six months after the date of the hearing. The FTT hearing was on 11 October 2012. The Appellant’s representative asked for a statement of reasons by letter dated 25 October 2012. Having received no reply, she followed that request up by further letters dated 21 February 2013, 7 March 2013 and 8 April 2013. The first follow-up letter was put before the District Tribunal Judge on 5 March 2013, the FTT office reporting no trace of the original request. The District Tribunal Judge asked the FTT judge in question to prepare the statement on 12 March 2013. It would then have taken some time to get the papers to the relevant FTT judge, who signed off the statement on 30 April 2013. If he had been sent the papers at the time of the original request, it may well be that this appeal could have been avoided altogether. We simply do not know whether the original request was lost and not delivered by Royal Mail or mislaid by HMCTS.

 

8. Be that as it may, Mr Richard Whitaker, who now acts for the Secretary of State in these proceedings before the Upper Tribunal, supports the appeal from the decision of the FTT for the reasons identified above. He is content on that basis that the matter is remitted (or sent back) for re-hearing to a new tribunal, as is the Appellant’s representative.

 

9. I formally find that the FTT’s decision involves an error of law for the reasons outlined above. The FTT’s decision (or technically two decisions) is (or rather are) set aside.

 

What happens next: the new First-tier Tribunal

10. There will need to be a fresh hearing of both DLA appeals before a new FTT. Although I am setting aside the FTT’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether or not the Appellant is entitled to DLA and, if so, at what rate and on what basis and from which date(s). 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. 

 

11. The new FTT will have to focus on the Appellant’s circumstances as they were in July 2010 and September 2011, and not the position as at the date of the new FTT hearing, 2-3 years later. This is because the new FTT must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998).

 

Conclusion

12. I conclude that the decision of the First-tier Tribunal involves an error of law.  I allow the appeals and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). Both appeals 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 27 November 2013 Judge of the Upper Tribunal