Introduction
Disability Right’s UK’s Welfare Rights Adviser Ken Butler provides you with a selected summary of recent welfare benefit case law decisions issued since our last Updater. Detailed summaries hundreds of other significant decisons and Court judgments are also available from our Case law archive page.
A disabled person’s welfare benefit entitlement is governed by rules set down in Acts and regulations agreed by Parliament. However, these are then subject to interpretation as to their exact meaning from the date they are passed.
While most benefit appeals are decided by First Tier Appeal Tribunals their decisions do not establish legal precedents.
Instead, precedent is set by judgments issued by appeals to the Upper Tribunal and other higher courts.
While the individual facts in every appeal are different, often legal issues are involved that have arisen before and the facts can be considered in light of legal precedent. For example, what needs to be established in deciding if finding someone fit for work would lead to a substantial risk to their health (CE/2291/2014) or whether someone’s inability to use an oven to cook can be considered in relation to their eligibility for PIP (CSPIP/40/2015). So, the citing of relevant case law may sometimes be useful in support of a disabled person’s welfare benefit appeal.
Contents
Employment and Support Allowance
Disability Living Allowance
Lack of corroboration of evidence does not relieve tribunal of duty to assess that evidence and to explain any findings it may make in relation to it
Case law ref: DLA
Upper Tribunal Judge: Church
File number: CDLA/1733/2019
This appeal relates to the Appellant’s claim for DLA made on 19 January 2017, and the decision made on 29 March 2017 that he didn’t qualify for the benefit (the “Decision”). The Decision was then confirmed on reconsideration.
The Appellant appealed the Decision to the First-tier Tribunal and the appeal was listed for an oral hearing to take place on 20 December 2017 at Coventry. However, that hearing was adjourned with directions that a copy of the Appellant’s GP records, and associated correspondence be obtained.
The consent form sent to the Appointee for signature was not returned and further directions were issued on 12 April 2018 rescinding the earlier direction for the obtaining of medical records and directing the appeal to be listed for an oral hearing. On 08 June 2018 a panel of the First-tier Tribunal convened to hear the appeal but the Appointee did not attend and the panel decided to adjourn.
A further panel of the First-tier Tribunal was convened on 24 July 2018 and again the Appointee failed to attend. This time she left a message with HM Courts and Tribunals Service to say that she was unwell and unable to attend.
The panel decided to proceed in the absence of the parties. It decided that the Appellant did not satisfy the statutory criteria for either component of DLA at either rate and refused the appeal (the “Tribunal’s Decision”).
The Appellant asked the Tribunal to look at its decision again but the judge member of the Tribunal decided that the Tribunal hadn’t made any error of law so the Tribunal’s Decision shouldn’t be reviewed and it refused to give permission to appeal. The Appellant then applied to the Upper Tribunal for permission to appeal.
In upholding the appeal, Judge Church holds that:
“Regardless of whether or not there was corroborative evidence for the claims made by the Appellant’s mother, the Tribunal was required to assess her evidence and to explain what it made of it. It then had to make a decision based on the evidence it had, or, if it could not make an evidence-based decision, it had to seek further evidence so that it could do so.
The Tribunal had a broad discretion as to how it assessed the evidence, but it couldn’t simply abdicate its role on the basis that there was no corroboration for what the Applicant’s mother had said. I am satisfied that the Tribunal’s decision making was in error of law in this regard.
The Tribunal also had before it evidence from the Child and Family Neurodevelopmental Service in the form of a referral form detailing the Appellant’s mother’s and school’s view of the Appellant’s difficulties. While that document was dated 30 March 2017 (i.e. the day after the decision under appeal was made) it was clearly relevant to the Appellant’s condition as at the date of the decision under appeal, and yet the Tribunal made no reference to that evidence. The Tribunal’s failure to address this piece of evidence also amounts to an error of law.”
Judge Church concludes by saying that:
“I am satisfied that the mistakes made by the Tribunal were material in the sense that had the Tribunal evaluated the evidence as it should, and had the Tribunal not misdirected itself that the Appellant’s mother’s evidence required corroboration if it was to be accepted, it might have reached a different conclusion and the outcome of the appeal might have been different.
I therefore allow the appeal and set aside the decision under appeal. Because further facts need to be found I send the case back to be re-heard by the First-tier Tribunal.”
Soothing a child to get back to sleep at night can be attention in connection with a bodily function
Case law ref: DLA
Upper Tribunal Judge: Wikeley
File number: CDLA/1837/2019
This appeal is about Elliott who is aged 3½ and who has developmental delay and hypermobility. His appeal concerned whether he was entitled to the highest rate of the DLA care component on the basis of his night-time care needs.
Elliott’s mother was his appointee and on 17 May 2018 she made a claim for DLA on his behalf. A DWP decision maker decided Elliott was entitled to the middle (but not the highest) rate of the care component of DLA for the period from 17 May 2018 to 8 June 2021 (the day before his 5th birthday). This was confirmed at mandatory reconsideration.
A Tribunal dismissed Elliot’s mother’s appeal and confirmed the existing level of the DLA award.
She then appealed again to the Upper Tribunal. This was om the grounds that the Tribunal failed to make sufficient findings of fact and/or give adequate reasons in relation to Elliott’s need for attention in connection with his communication skills when his parents were trying to settle him back to sleep at night.
In upholding Elliot’s appeal, Judge Wikeley says:
“The problems with the First Tier Tribunal’s (FTT’s) reasoning start at paragraph 9 of its statement of reasons, where it states that in reported (actually unreported) decision CSDLA/567/2005 “it was held that attention given in soothing a child to sleep could be attention in connection with his bodily functions but only if the difficulty in sleeping was caused by a disability”. …However, the Commissioner’s precise words were “Soothing back to sleep can count as attention with a bodily function provided that the sleeplessness is linked to a disability” (emphasis added). It seems to me there is a potentially significant difference between the notions of being “linked to a disability” and being “caused by a disability”.
The decision in CSDLA/567/2005 was taken against the backdrop of the existing well-established case law and notably the reported decision in R(A) 3/78. That case concerned a young boy (Ian) with epilepsy. The Commissioner ruled that to focus only on the disabling condition was too narrow a test. Instead, in deciding whether attention was reasonably required, one had to consider the circumstances created by manifestations of his condition, such as the difficulty in getting the boy back to sleep after he had been disturbed by a fit.”
He then continues:
“It is no doubt entirely proper to consider whether a disabling condition is harmful in itself, so as to evidence a requirement for attention in connection with bodily functions. However, in my opinion, it is not sufficient to focus attention exclusively on the limited question of possible harm attached to the disabling condition itself.
The whole circumstances in which a disabling condition may manifest itself must be taken into account, since a disabling episode, of itself harmless, may none the less create a situation in which attention is required, not for the disabling condition itself, but in connection with the claimant's bodily functions affected by the circumstances created by the manifestation of the disabling condition.
The reality is that any requirement for attention in such a case is by reason of the disablement and the allied circumstances of its manifestation and I see no reason to divorce the one from the other as being causally responsible for any requirement for attention.”
Judge Wikeley then considers the Tribunal’s consideration of the issue of causation:
“The FTT review the evidence and in effect conclude that Elliott had no functional inability to sleep for longer unbroken periods at night or to get back to sleep again after waking up at night that could be traced back to a physical or mental cause.
With respect, that was to ask themselves the wrong question. The question that should have been addressed was that posed by section 72(1)(c)(i) of the Social Security Contributions and Benefits Act 1992, namely whether at night Elliott reasonably required “from another person prolonged or repeated attention in connection with his bodily functions”.
If he did, then the FTT had to tackle the “additional child test” in section 72(1A)(b). I acknowledge that the FTT made this distinction between sections 72(1) and 72(1A) at paragraph 8 of its reasons, but this lengthy disquisition on causation in a somewhat narrow sense indicates that they took their eye off the ball on the critical issue. It also comes perilously close to breaching the principle that there is no need for a specific physical or mental condition to be identified as the cause of the disability (see reported decision R(DLA) 3/06).”
Finally, Judge Wikeley, finds that the Tribunal did not adequately address the parents’ argument that if Elliott had age appropriate communication skills then he would not need the extra attention at night in order to settle back to sleep:
“To say that Elliott’s language delay did not affect his ability to go back to sleep is to miss the point; the parents’ argument was that the language delay meant it was much more difficult to understand what was troubling their child and as such the process of soothing (i.e. the attention in connection with the bodily function) was more protracted.
The FTT’s focus should have been on the attention required in connection with the bodily function of communication and not of sleeping. A further difficulty with the reasoning is that the comparison made by the FTT is far too loose – their reference point is phrased in very general terms as a “1 or 2 year old”, when statute requires a comparison with a child of the same age (here 2 years and 1 month). There is, of course, the world of a difference in sleeping patterns between say a 13-month old and a child almost twice that age.”
Judge Wikeley therefore allows the Elliot’s appeal, set aside the Tribunal’s decision and remits it to a new and differently constituted tribunal, which must make a fresh decision.
Employment and Support Allowance
Tribunal should have considered claimant’s covert audio recording of HCP assessment and its transcript
Case law ref: ESA
Upper Tribunal Judge: Wikeley
Neutral Citation Number: CE/3441/2013
An issue in this appeal concerned the admissibility of the Appellant’s audio-recording of his consultation with the health care professional (HCP).
The Appellant had attended an ATOS assessment centre for a PIP assessment with a HCP. While the Appellant tape-recorded this interview there was no indication from the HCP’s report that the paramedic was aware that the consultation it was being recorded.
In appealing the decision not to renew his PIP award, the Appellant sent as evidence a copy of the audio recording:
“The recording of the full 35-minute assessment consultation conversation was made on my own portable Dictaphone, transferred onto standard audio cassette tapes to pass on to DWP, Independent Assessment Services and to HMCTS, only if it had been necessary to do so. In this case I felt that it was. The reasons for recoding the assessment consultation is that I experienced previous problems with ATOS Healthcare inasmuch as similarly the HP at the time produced an inaccurate misleading consultation report to the DWP decision maker regarding a PIP assessment consultation on 7/1/14.”
The Appellant also included a 21-page handwritten transcript of the recording. He explained that “as I am unfamiliar with the format of writing a transcript, I have wrote it word for word as per the recording”).
In its statement of reasons, the First Tier Tribunal (FTT) noted that:
the Appellant had tape recorded the consultation with the HCP;
a copy of the Appellant’s transcript was in the appeal bundle; and
the DWP had been given the opportunity to challenge the accuracy of the transcript but had made no representations.
The FTT’s statement of reasons considered each of the PIP descriptors in issue in turn. In doing so the FTT made findings of fact, referring to various evidence on file and to the Appellant’s own oral evidence. However, throughout all this part of the statement of reasons it made no reference to the HCP’s report (or the Appellant’s transcript and his challenge to the report’s accuracy).
The Secretary of State argued that the FTT did not err in law as it placed no reliance on the HCP report in making its findings. In those circumstances, he contends, there was no error in the FTT not referring to any criticisms of that report.
However, in rejecting this, Judge Wikeley says:
“The decision-maker’s formal response, resisting the appeal, had almost exclusively relied on the accuracy of the HCP report. The Appellant’s grounds of appeal in turn were almost exclusively based on his challenge to that report.
In its statement of reasons, the FTT had declared, rather formulaically, that it had “considered all the documentary evidence in the appeal bundle and made its findings of fact on the balance of probabilities”.
Yet apart from recognising that they both existed, the FTT made no substantive reference to either the HCP report or the Appellant’s transcript of that consultation.
There is no evidence they considered what the HCP recorded about the Appellant’s ability to move around or what the Appellant’s own transcript recorded him as having said, issues which were central to the question of potential entitlement to the PIP mobility component.
Perhaps the FTT decided to ignore the transcript because of some concerns about its provenance. I consider the (apparent) complete exclusion of any consideration of the substance of both the HCP report and the Appellant’s transcript, and the associated absence of reasoning, as a further error of law that justifies allowing the appeal and setting aside the FTT’s decision.”
Judge Wikeley then considers at length rule 15 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (that sets out the powers of the FTT in relation to evidence and submissions), and the overriding objective in rule 2 of dealing with cases fairly and justly.
After concluding that as far as relevance, receivability admissibility is concerned, the audio recording meets rule 15, in the context of rule 2 he finds that:
“This was a case in which the Appellant sent the DWP a copy of the audio-cassette on 29 September 2017 and forwarded a further copy to the FTT office on 22 November 2017. He also sent a copy of his transcription of the consultation to the FTT office on 3 January 2018 and it was issued to the DWP shortly thereafter.
The FTT also issued directions to the DWP on 16 January 2018 inviting it to make any objections. No such objections were received.
The FTT hearing then took place on 14 May 2018.
In those circumstances the DWP can hardly claim to have been taken by surprise or ambushed, and [the Secretary of State] rightly makes no such suggestion. My conclusion is that the FTT should have addressed the issue of the transcript head on rather than ignored it.”
However, while finding a new tribunal must consider the evidence of the audio recording and its transcript, he cautions that:
“None of this should be taken as suggesting that the Appellant’s transcript is the magic bullet that proves his case. It may be that the observations and findings as set out in the HCP’s report are sustainable by way of direct or indirect inference from the conversation that took place. However, those are issues of fact for the next FTT to determine.”
Whether absence of treatment is an adequate basis to infer the existence of physical or mental function
Case law ref: ESA
Upper Tribunal Judge: Poynter
Neutral Citation Number: CE/3496/2017
The claimant was a 48-year-old woman who had been receiving ESA but who, following a work capability assessment was held to score no points.
The claimant unsuccessfully appealed to the First-tier Tribunal against the resulting decision that she did not have a limited capability for work.
In considering her appeal to the Upper Tribunal, Judge Poynter considers the issue of the FTT drawing conclusions about function from treatment.
The FTT stated:
“The appellant’s GP referred to the appellant suffering from a loss of confidence… but the Tribunal’s medical member advised that the way to deal with that presentation and symptoms was potentially to refer the appellant to a range of treatment such as Talking Therapy, counselling or cognitive behavioural therapy and to encourage her to engage in activities. The Tribunal was unclear why there was no corresponding treatment for the appellant if her difficulties were known to the GP and the Tribunal was entitled to conclude that the appellant’s symptoms were actually mild.”
The claimant’s representative submitted to Judge Poynter that:
“A current lack of treatment is not by itself [a reason] including the appellant did not meet the qualifying criteria. … The appellant had had the conditions and symptoms for many years. It may be that management by the GP was currently considered the most appropriate by the appellant’s own health care professional, other treatments and interventions having taken place over [preceding] years. The tribunal made no findings about prior treatments and interventions the appellant had undergone. …
The tribunal should have put those concerns to the appellant and considered an adjournment to seek further evidence to address this issue.”
While Judge Poynter broadly agrees with these observations, he does not agree that the tribunal should have put its concerns to the appellant:
“The claimant is not medically qualified and therefore lacked the knowledge to respond to any concerns the Tribunal may have had on this point. It is difficult to see how she could have commented other than to suggest that the treatment she received was a matter for her GP’s professional judgment which she was not in a position to second-guess.
But, as presently advised, I do agree that if the Tribunal perceived a conflict between the GP’s evidence and the treatment that the GP had offered the claimant, it should, in fairness, have put its concerns to the GP before resolving the issue against the claimant.”
While Judge Poynter broadly agrees with these observations, he does not agree that the tribunal should have put its concerns to the appellant:
“However, the impracticality is an indication that tribunals should be very cautious about drawing inferences from the treatment received by claimants in the first place. It is not an indication that tribunals who do decide to go down that path should decline to adopt a procedure that is fair to the claimant.
When a Tribunal concludes that a claimant cannot be accurately describing the conditions from which she suffers because, if she were, she would be receiving different treatment, its reasoning is often reducible to this: that the Tribunal’s medical member would not him- or herself treat a person with those conditions in that way. In this appeal, paragraph 34 of the statement makes that process of reasoning express.
But medicine is a broad church. As is recognised in other areas of the law, there is a wide spectrum of reasonable medical opinion and practice. And anyone who has ever sat as a judge or disability-qualified member in the Social Entitlement Chamber will probably be able to provide examples of medical members who hold widely differing views about the issues that commonly arise in appeals. Moreover, it is not unknown for professional people to believe that their own views and practices are more universally held and followed than is in fact the case.
Furthermore, particularly in relation to prescribing, treatment is an art as well as a science. Or, at least, it is a matter of professional judgment that can be heavily influenced by the individual doctor’s own experience.
To take the current case as an example, the Tribunal’s medical member may well be correct to believe that, across the population as a whole, talking therapies are effective to improve the type of anxiety and loss of confidence that are described in paragraph 34 of the statement.
But the professional experience of the claimant’s GP may be atypical. It may be that, for whatever reason, the results achieved by his patients from talking therapies in the past were disappointing and that he is therefore less inclined to refer his patients to such therapies than would otherwise be the case.
Alternatively, he may be aware of circumstances that are not known to the Tribunal, but which suggest to him that the claimant would not benefit from such therapies.”
Judge Poynter then concludes as follows:
“Finally, although I do not suggest that it is so in this case, some claimants will simply have a GP who is not very good at his or her job.
Assuming a normal distribution of medical excellence, a large proportion of the population will have a GP who is below average. That is not a reflection on the medical profession. It is also true by definition of most, if not all, fields of human activity. Not everyone can be above average.
There is therefore a real risk that drawing inferences about function from treatment will in some cases lead the Tribunal to conclude that claimants do not suffer from the loss of function they describe because they are not being correctly treated for it.
That is clearly not a permissible conclusion. But the Tribunal will often not be in a position to distinguish such cases from those (I suspect, few) cases in which the GP’s evidence to the Tribunal is deliberately exaggerated.
For those reasons, in addition to those given by the claimant’s representative, I do not agree that “the Tribunal was entitled to conclude that the appellant’s symptoms were actually mild” from the fact that it “was unclear why there was no corresponding treatment for the appellant if her difficulties were known to the GP”.”
Relevance of previous missed appointments when considering good cause for failure to attend a medical examination
Case law ref: ESA
Upper Tribunal Judge: Jacobs
File number: CE/1167/2019
The claimant, who was receiving ESA, was sent an appointment with a health care professional for 6 July 2018 at 3.45. At 8.25 on that morning, the claimant’s husband phoned to report that she had fallen and was going to the hospital. In the event, she did not go to the hospital, saying it was not necessary. She later wrote that she was always having falls and sent some photographs of her injuries.
The Decision Maker decided that the claimant did not have good cause, and she appealed to a First Tier Tribunal.
The tribunal decided the case in the claimant’s absence. In summary, these are the reasons the judge gave for dismissing the appeal:
the evidence of the claimant and her husband was inconsistent. When he rang on the morning of the appointment, he said his wife would be going to hospital. When she made her appeal, she said that she had not done so;
the decision-maker was entitled to expect some medical evidence to support the claimant’s explanation;
falls are unpleasant and upsetting but people are usually able to continue with their lives fairly shortly afterwards.
Finally, on the previously missed appointments, the judge said that they were a relevant consideration, although ‘manifestly not determinative because the respondent must have accepted good cause on the other five occasions’. They did show that the claimant must have known the importance of attending the appointment and of having a good reason for not doing so.
In upholding the claimant’s appeal, Judge Jacobs identifies the following deficiencies in the tribunal’s reasoning:
“ First, inconsistent evidence. The two statements were not necessarily inconsistent. It is possible that when the fall occurred the claimant thought a visit to hospital was necessary but decided later that this was not required. The statements may be inconsistent, or they may not. The mere fact that they differ does not prevent there being a rational and reasonable explanation for the difference. The judge did not say whether he had considered other possibilities and why he had assessed the evidence as he did.
Second, the lack of supporting medical evidence. In order to get medical evidence, the claimant would have had to see a doctor. She did not do so, because she decided on reflection that a visit to the hospital was not necessary. But that does not mean that the fall was not significant for her. She experiences them regularly and doctors do not encourage patients to take up surgery time with such events.
Third, people get on with their lives after falls. This may be true as a generality, but the judge did not set his reasoning in the context of the claimant’s disabilities as she set them out in her questionnaire or the award of disability living allowance which was indicative of mobility difficulties.”
Judge Jacobs then cites Regulation 24 of the Employment and Support Allowance Regulations 2008 that provides that matters to be considered when considering good cause for failure to attend (or failure to provide information) are:
whether the claimant was outside Great Britain at the relevant time;
the claimant’s state of health at the relevant time; and
the nature of any disability the claimant has.
Judge Jacobs then goes on to give guidance on the issue of a claimant previously having missed work capability assessment appointments:
“ In principle, the significance of previously missed appointments will depend on the circumstances of the case. A decision-maker, and therefore a tribunal, has to consider the circumstances of the failure to attend that led to the decision under appeal. The explanation given and the evidence presented by the claimant will always be relevant.
Previously missed appointments may also be relevant to that assessment. As may the evidence available about the claimant’s health and disabilities (regulation 24(b) and (c)). The decision-maker and the tribunal are not making an assessment of the claimant’s capability for work, but they are entitled to take account of the evidence provided for that purpose when deciding whether the claimant had good cause.
Take first a claimant whose explanations refer to the same condition. Much will depend on the nature of that condition. It should come as no surprise if there are repeated failures to attend on account of agoraphobia. There would be no cause for suspicion. Quite the contrary, an ability to attend sometimes but not others could call into question the claimant’s asserted disability. In contrast, if the claimant’s condition is variable, chronic fatigue syndrome say, variation is to be expected and not of itself a cause for suspicion.
The position may be more complicated if the claimant gives different reasons for not attending on successive occasions. By definition, the decisionmaker will have accepted good cause on the earlier occasions. There is no question of changing those decisions, but a later decision-maker may conclude, looking back at the history of the case and taking account of evidence now available, that there has been a pattern of avoidance by the claimant.
Even then, it is important to focus on the current failure. The previous conduct may justify careful scrutiny of the current failure, with perhaps a request for supporting evidence. But even a claimant with a lengthy history of failing to attend for what appear, in hindsight, to be highly dubious reasons may still be delayed by inclement weather or have a domestic emergency. And a claimant who has more than one disabling condition may be prevented from attending for different reasons on different occasions.
In short, it all depends, which means that tribunals need to take care in their reasoning to show whether they took any account of a claimant’s previous failures and, if so, how in order to demonstrate that their relevance was assessed rationally, taking account of points both for and against the claimant.”
Tribunal proceeding in claimant’s absence when ESA50 is missing from papers/ whether a request for an all-female tribunal panel was reasonable
Case law ref: ESA
Upper Tribunal Judge: Wikeley
File number: CE/238/2019
The Appellant suffered from several medical conditions, including gynaecological problems and difficulties with bowel movements. After a mandatory reconsideration of the decision that she did not have a limited capability for work she appealed to a Tribunal.
In her notice of appeal, in response to the question “Do you have any special needs?”, the Appellant wrote as follows:
“Yes – I find discussing my medical issues very distressing/embarrassing. I therefore request all-female Tribunal panel + female clerk + female presenting officer (this request has already been granted for my upcoming PIP appeal).”
However, her request for an all-female First-tier Tribunal panel for the oral hearing of her ESA appeal was refused by the District Tribunal Judge, and the direction for an all-female PIP tribunal was set aside.
The case was listed for oral hearing before the Tribunal. The Tribunal waited for half an hour past the allotted time but then decided to proceed in the Appellant’s absence. It dismissed the appeal and the then appealed to the Upper Tribunal.
In granting leave to appeal, Upper Tribunal Judge Poynter that the Tribunal decided to proceed in the Appellant’s absence “when it had very little idea about what [her] case was”:
“This was because the Department had mislaid [the Appellant’s] replies to the Limited Capability for Work Questionnaire (Form ESA50) … The only documents before the Tribunal that emanated from [the Appellant] were the Notice of Appeal, the request for mandatory reconsideration, her annotations on the “Fit Notes” issued by her GP, and her application to set aside [the District Tribunal Judge’s] direction that the appeal should proceed before a tribunal with a single female member; and an unsuccessful application for an adjournment.
Although the first of those documents described her problems with defecation in graphic terms, none of them included any details about which descriptors she claimed to satisfy.
The aspect of the case that concerns me most is that nothing in the papers suggests that [the Appellant] realised that was the case. The absence of the Form ESA50 is mentioned in the response but is not highlighted as a potential problem. On the contrary, the information is accompanied by apparently reassuring words about the health care professional having seen it.”
He adds that:
“In my provisional judgment, what fairness required—at least once [the Appellant’s] concerns about the composition of the Tribunal and wish for an adjournment raised the possibility that she might not attend any hearing—was that the Tribunal should have brought that state of affairs directly to her attention.
Ideally, that should have been done during pre-hearing case management.
But, as it had not been, it is—putting it at its lowest—arguable with realistic prospects of success that the Tribunal on 26 April 2018 should not have proceeded in [the Appellant’s] absence but should instead have given directions explaining that, in the absence of the Form ESA50, if she was not prepared to attend a hearing, the Tribunal would inevitably have to make a decision without knowing her side of the case.”
In allowing the appeal, Judge Wikeley agrees with the Secretary of State’s submission to him that:
“(i) the Appellant had requested an oral hearing, indicating she wished to participate in person and provide oral evidence;
(ii) the Tribunal went some way to addressing the requirements of rule 31 (and especially rule 31(a) [of the First Tier Tribunal Rules] );
(iii) however, it had failed properly to address rule 31(b) (the ‘interests of justice’ test), in particular in misdirecting itself as to the Appellant’s willingness (or otherwise) to consent to the disclosure of her medical records. In those circumstances, Ms Kiley agrees that it was not in the interests of justice to proceed without giving proper consideration to adjourning either for additional documentary evidence or to allow the Appellant to attend to give oral evidence.”
Judge Wikeley then considers the issue of the Appellant’s request for an all-female tribunal panel.
He explains that Panel composition is now governed by the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 (SI 2008/2835) and the Senior President’s Practice Statement on the Composition of tribunals in social security and child support cases in the Social Entitlement Chamber on or after August 1 2013. Neither the Order nor the Practice Statement he says has anything to say either way about the gender composition of tribunals.
However, he continues that:
“The decisions in CIB/2620/2000 and CIB/2811/2008 are plainly authority for the proposition that, even in the absence of a request for at least one member of the panel to be the same gender as the claimant, “a tribunal will nevertheless be under a duty to raise the matter of its own motion if there is a genuine reason to believe that in the circumstances of the particular case the absence of such a member may lead to injustice”.
Although the point need not be resolved definitively in the context of the present appeal, I agree with Judge Poynter provisional conclusion it “cannot be ruled out that there may be exceptional cases in which fairness requires that every member of the tribunal is of the same sex” – and indeed that the clerk and any presenting officer be female as well.”
He then goes on to say that:
“In practice, cases in which an all-female panel (and possibly an all-female hearing room environment) may be sought, or where such composition should be considered by the tribunal of its own initiative, are likely to fall into two categories of case – first, appeals involving sensitive and uniquely female medical conditions and, secondly, cases raising cultural issues about the giving of evidence (on which see the guidance of another Chamber of the Upper Tribunal in AAN (Veil) Afghanistan [2014] UKUT 102 (IAC)).
The common thread is that such questions must be judged by applying the overriding objective as set out in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. The weight to be attached to the factors identified there (and other relevant factors not captured in the statutory formulation) will vary from case to case.
In carrying out that exercise, it is not helpful for those involved in the judicial process to characterise a request for an all-female panel in terms of it being an attempt by the claimant to “choose their own tribunal”.
Rather, the question is whether such a solution is fair and just and ensures “so far as is practicable, that the parties are able to participate fully in the proceedings” (rule 2(2)(c)), bearing in mind also the other considerations in rule 2.”
Judge Wikeley upholds the appeal on the grounds that the Tribunal’s decision involved a legal error as it did not adequately explain why it proceeded with the hearing in the Appellant’s absence.
In setting aside the Tribunal’s decision and remitting it for rehearing he concludes by saying that:
“The Appellant … indicates that she would rather avoid the stress of a further ESA tribunal hearing and so requests for her re-heard appeal to be considered “on the papers”.
If so, the request for an all-female tribunal panel necessarily rather falls away (although the case for at least one female member of the new First-tier Tribunal remains compelling).
Experience shows that appellants who attend oral hearings of their appeal tend to fare rather better than those whose appeals are decided on the papers. The Appellant is therefore asked to confirm that it is indeed her wish for a hearing on the papers, as this may affect the District Tribunal Judge’s directions as to the composition of the new tribunal.”
Understanding communication: relevance of the likelihood of a “stranger” sharing a common language with the claimant / whether a claimant must have difficulties with understanding both written and spoken communications, or only one or other of them, to score points
Case law ref: ESA
Upper Tribunal Judge: Church
File number: CE/2918/2019
This appeal is about the correct approach to scoring activity 7 in Schedule 2 to the ESA Regulations 2008 which relates to understanding communication.
The appellant was awarded ESA from 2013 due to problems she reported having with her hearing, her mental health and her ability to learn. With a Tribunal dismissing her appeal against a decision superseding her ESA entitlement she appealed to the Upper Tribunal.
Her grounds of appeal were that the Tribunal took in relation to activity 7 of Schedule 2 to the ESA Regulations was wrong and the Tribunal failed to consider the individual descriptors or to make adequate findings of fact to support the Tribunal Decision.
The activity of understanding communication is set out in Schedule 2 as follows:
“7. Understanding communication by –
(i) verbal means (such as hearing or lip reading) alone; (ii) non-verbal means (such as reading 16 point print or Braille) alone; or (iii)
a combination of (i) and (ii), using any aid that is normally, or could reasonably be, used, unaided by another person.”
The descriptors applicable to activity 7 of Schedule 2 are:
(a) Cannot understand a simple message, such as the location of a fire escape, due to sensory impairment.
(b) Has significant difficulty understanding a simple message from a stranger due to sensory impairment.
(c) Has some difficulty understanding a simple message from a stranger due to sensory impairment.
(d) None of the above applies.”
The activity is described in the same terms in Schedule 3, but the only descriptor is “Cannot understand a simple message, such as the location of a fire escape, due to sensory impairment.”
In its reasons statement the Tribunal explained its decision-making in as follows:
“In the ESA 50 the appellant said that she could not hear speech but could understand a message that was written down in Urdu (p19). It was claimed that she could not lipread or use sign language (p19) although this was not what the appellant herself said at the appeal hearing. In any event the Tribunal considered carefully the interpretation to be placed upon activity
The current situation as exemplified in CM v SSWP (ESA) [2016] UKUT 0242 (AAC) is that the yardstick is whether a claimant, due to sensory impairment, could not understand a simple message such as the location of a fire escape either at all (descriptor A) or from a stranger (descriptors B and C).
It would be erroneous to conclude that those who are unable to hear at all were inherently unable to work. In the present circumstances the appellant was able to understand a message if it was written down for her in her first language (Urdu). In those circumstances even if she did not lipread or understand sign language and was unable to wear her hearing aids, then it was the Tribunal’s view that no points were applicable under the terms of this activity.”
Upper tribunal Judge Church first considers the issue of whether the Tribunal entitled to consider the claimant able to understand written communication when she could only understand writing in Urdu?
He holds that:
“This misunderstands the proper approach to the assessment of a claimant’s ability to perform the activities contemplated by the descriptors in Schedules 2 and 3 to the ESA Regulations.
While the ESA Regulations talk of “limited capability for work” and “limited capability for work-related activity” they do not simply assess a claimant’s suitability for work or work-related activity. The starting point is that ESA is a disability benefit. Entitlement is based on the degree of functional limitation experienced by the claimant in connection with his or her physical or mental health.
The activities set out in Schedule 2 are broad proxies for the kinds of activities a claimant may be expected to do in a workplace or in getting to and from work, but any limitation in a claimant’s ability to perform an activity which doesn’t result from a health condition is not relevant to the assessment of their entitlement.
A lack of facility for English (whether spoken or written) may well limit a claimant’s prospects of getting a job or doing a job, and there may be circumstances in which a claimant’s lack of facility for English might be relevant to an assessment under the ESA Regulations (for example in considering Regulations 29 and 35 …) but it can’t of itself establish entitlement to ESA.”
He then adds that:
“Activity 7 seeks to assess the degree to which a claimant’s sensory impairment affects his or her ability to understand spoken or written communication. Although descriptor 7(a) of Schedule 2 and the sole descriptor for activity 7 of Schedule 3 give the example of the location of a fire escape, activity 7 is not intended to involve a risk assessment of how the claimant would stay safe in a hypothetical fire.
To ask whether it is “reasonable” to expect the hypothetical stranger to write the “simple message” contemplated by descriptor 7(b) in Urdu is, therefore, beside the point because any difficulties with understanding that message would be wholly unrelated to the Appellant’s sensory functioning. Another non-English speaking Urdu speaker with no sensory impairment would be in exactly the same position.”
In granting permission to appeal the judge asked whether, if the Work Capability Assessment were to be applied in the context of the world of Judge Church does concede that there could be circumstances in which a claimant’s lack of facility for English might be relevant to an assessment of whether a finding that the claimant does not have limited capability for work (under regulation 29(2)(b) of the ESA Regulations), or for work-related activity (under regulation 35(2)(b) of the ESA Regulations), would give rise to a substantial risk to the mental or physical health of any person:
“It may be, for example, that a claimant with a severe anxiety disorder might experience an exacerbation in their symptoms of anxiety if put in a situation which brings with it a high likelihood of being called upon to attempt to communicate with someone with whom he or she doesn’t share a language.
However, any substantial risk relied upon in such a case would have to be by reason of the claimant’s “specific disease of bodily or mental disablement”. A claimant who would feel very anxious in such a situation, but whose anxiety did not arise in the context of any such disorder, would not be able to satisfy the requirements of those provisions.”
Judge Church then considers whether the impairment relate to understanding of both spoken and written communication to score.
In doing so he says that:
“The Tribunal correctly identified the Upper Tribunal decision in CM v SSWP (ESA) [2016] UKUT 0242 (AAC) as being relevant to the issue of how to apply the tests under activity 7, but the approach the Tribunal took to activity 7 of Schedule 2 is impossible to reconcile with the approach that Judge Ward took in that decision (which concerned activity 7 of Schedule 3), or indeed with the approach taken by Judge Markus QC in AT and VC v SSWP (ESA) [2015] UKUT 445 (AAC) in relation to the previous version of Schedules 2 and 3, and which Judge Ward wholeheartedly endorsed in his decision.
… As Judge Ward aptly summarised the position in paragraph 8 of his decision in CM v SSWP, the policy intent of the regulations was that “either the requisite degree of impairment of hearing, or of sight, should suffice to enable a claimant to score the points; it was not necessary that both faculties be impaired”. The ESA Regulations should be interpreted accordingly.
The Tribunal’s decision that, since the Appellant could understand written communication she couldn’t be awarded points under activity 7 even if she did not lipread or understand sign language and was unable to wear her hearing aids, was inconsistent with authority which was binding on it. I am satisfied that the Tribunal misdirected itself in law in this regard.”
Judge Church then sets out what findings the Tribunal should have made:
“Having found that the Appellant had “a significant hearing impairment” it was incumbent on the Tribunal to assess, on the basis of the evidence:
whether the Appellant normally used hearing aids; or
if she doesn’t normally use hearing aids, whether it would be reasonable for her to do so (given her evidence that wearing them causes discomfort); and
which activity 7 descriptor is most appropriate in the light of its findings on the matters listed in a. and b. above.
The Tribunal didn’t make findings on these issues, presumably because it didn’t think it needed to decide them due to its mistaken belief that her ability to read in 16 point print disqualified her from satisfying the point-scoring descriptors for activity 7.
Even if the Tribunal did assess these matters its failure to explain that assessment means that its reasons fail to meet the required standard of adequacy. This itself amounts to an error of law.”
Judge Ward therefore sets aside the Tribunal’s decision and remits her appeal to a new differently constituted Tribunal.
Housing Benefit
Social security tribunals have the power to provide effective remedy to benefits claimants where the application of the bedroom tax breaches their Human Rights Act rights
Case law ref: Housing Benefit
Supreme Court Judges: Lady Hale (President), Lord Reed (Deputy President), Lady Black, Lord Briggs, Lady Arden
File number: [2019] UKSC 52
The Supreme Court has ruled in favour of a man, known as RR, who brought a legal case regarding whether social security tribunals and local authorities have the power to provide effective remedy to benefits claimants where the application of the bedroom tax breaches their rights under the Human Rights Act.
The court upheld an order by the Upper Tribunal that RR’s housing benefit should be recalculated without the 14% deduction from the bedroom tax because applying the deduction would breach his rights under the Human Rights Act.
The case answered an important constitutional question as to whether subordinate legislation like the regulations which provide for the bedroom tax could be disregarded where not doing so would result in a breach of human rights.
In the context of Mr RR’s situation, the specific question was whether those making decisions on housing benefits, including local authorities and the First Tier Tribunal and Upper Tribunal – in claims relating to the period before the regulations were amended by the Supreme Court case brought by Jacqueline Carmichael in December 2016 – have to carry on applying the regulation in its original form or whether they could calculate housing benefit without making the percentage deduction in order to avoid breaching Mr RR’s human rights.
The Supreme Court’s unanimous confirms that the decision-makers must not make the bedroom tax deductions if the deductions would breach the claimant’s human rights.
The five Supreme Court judges reaffirmed that where it is possible to do so, a provision of subordinate legislation (like the regulations in this case) which results in a breach of a right under the Human Rights Act must be disregarded.
RR lives with his severely disabled partner in a two-bedroomed rented social housing property for which he claims housing benefit. He continued the original legal case brought by Jayson and Jacqueline Carmichael. Both the Carmichaels and RR are represented by law firm Leigh Day.
The initial case was brought by Mr and Mrs Carmichael, who under the bedroom tax rules had only been allowed one bedroom. They argued in their legal case that they needed two bedrooms due to Mrs Carmichael’s medical condition.
Mr Carmichael successfully challenged the decision to apply the bedroom tax to his housing benefit allowance in the First-tier Tribunal (FTT) in 2014, but the government later successfully appealed that decision in the Court of Appeal in February 2018.
Mrs Carmichael had been successful in the Supreme Court in a separate but related judicial review challenge of the bedroom tax regulations in December 2016.
In this case, the Supreme Court found that the bedroom tax was unlawful when applied to couples who require an extra bedroom due to a medical need.
Despite this finding, the government still decided to press ahead with their appeal of Mr Carmichael's FTT case. They argued that the remedy given by the FTT – to disapply the bedroom tax to people with disabilities who need a second bedroom for medical reasons – is not one which could be provided by the FTT.
When heard by the Upper Tribunal, the bench confirmed that the FTT had the power to provide a human rights remedy to benefits claimants, however, the Court of Appeal disagreed with this decision and found, with Lord Justice Leggatt dissenting, that the lower tribunals did not in fact have the power to provide such a remedy to benefit claimants.
Following the decision of the Court of Appeal, Mr and Mrs Carmichael did not feel able to pursue their housing benefit challenge to the Supreme Court, due to their personal circumstances.
However, Mr RR continued the challenge in the Supreme Court at a hearing in July 2019.
In order to challenge the Upper Tribunal’s decision Mr RR successfully obtained a so-called “leapfrog certificate”, the first of its kind from the Upper Tribunal (Social Entitlement Chamber), which made it possible to apply for permission to appeal directly to the Supreme Court, rather than to go back to the Court of Appeal.
In giving the Supreme Court’s lead judgement, Lady Hale says that the HRA draws a clear distinction between primary and subordinate legislation – both in section 6 (the requirement for public authorities to act compatibly with Convention rights) and in section 3 (the interpretative obligation.
And that, although primary legislation which cannot be read or given effect compatibly with Convention rights must still be given effect under the exception in section 6(2), this exception does not extend to subordinate legislation, where there is no primary legislation preventing removal of the incompatibility.
She also highlights that the courts have consistently held that a provision of subordinate legislation which results in a breach of a Convention right must be disregarded, if it is possible to do so without affecting the statutory scheme.
As a result, Lady Hale says that a decision-maker must find that a claimant who is unjustifiably discriminated against is entitled to the housing benefit they would have received if the discrimination had not occurred and that to do otherwise would be acting in a manner which section 6 of the HRA declares to be unlawful.
This Supreme Court ruling is of great significance as it confirms the powers of social security tribunals and local authorities to take steps to avoid breaches of human rights by disregarding secondary legislation where it is possible to do so, so ensuring that the welfare system can properly and fairly support disabled people.
Personal Independence Payment
Claimant with epilepsy had good cause for not attending medical examination despite not arranging home visit in advance
Case law ref: PIP
Upper Tribunal Judge: Church
File number: CE/2037/2018
The appellant failed to attend a work capability assessment medical examination as he had an epileptic seizure on that day. A Decision Maker decided that he had failed without good cause to attend the medical examination and ended his ESA entitlement.
In response to the appellant’s subsequent appeal, the DWP submitted that he:
he had been unable to attend previous appointments for a medical assessment for a similar reason;
he had been advised that he could provide supporting evidence from his GP or a consultant neurologist outlining the difficulties he faces travelling and attending an assessment and potentially requesting that the assessment should be carried out at his home to reduce the risk of stress and therefore the risk of him having a seizure;
as he didn’t provide any such supporting medical evidence requesting that consideration be given to a home assessment he had not taken the actions that would be deemed reasonable under the circumstances; and
had therefore not shown “good cause” for not attending the appointment for the purposes of regulation 23 of the ESA Regulations 2018.
In considering the appeal, Judge Church explains that neither the DWP’s submissions nor the First-tier Tribunal’s decision or statement of reasons suggested that the appellant’s claim that he had a seizure on the day of his appointment was untrue. The DWP also accepted both that an epileptic seizure may be triggered by stress and that attending an assessment (or indeed the thought of travelling to the assessment centre) could be stressful for individuals.
However, the First-tier Tribunal found that the appellant had been advised by the DWP that stress, which might be a trigger for fits, could be greatly reduced if, with appropriate medical evidence, an application for a home visit by a healthcare professional were arranged.
It then decided based on those findings that the appellant had not acted reasonably under the circumstances and it adopted in full the reasoning set out in the DWP’s response and disallowed his appeal.
In granting the appellant permission to appeal, Judge Church had held that:
“It is arguable that to apply a standard for “good cause” which requires the claimant to plan substantially in advance, to take the initiative to seek a home assessment, and to provide evidence sufficient to satisfy the Department for Work and Pensions that a home assessment should be agreed to, is to set the bar for the claimant too high as it is arguable that such a requirement is neither expressly stated nor implicit in the wording of Regulation 23. Given that Regulation 24 requires that “the claimant’s health at the relevant time” is to be taken into account in determining whether “good cause” has been established it is arguable that the proper question to ask when considering this issue is: “what would a reasonable person do when faced with the circumstances the claimant found him or herself in on the day in question?” rather than considering what steps the claimant might have made in anticipation of the possibility of his experiencing an epileptic seizure.”
In then upholding the appeal, Judge Church says that the DWP’s case proceeds from the premise that it is for the claimant to decide whether a home visit is necessary and to provide evidence to show that it is.
Following this logic, he says:
“… if the claimant “fails” to seek a home visit then no matter how unwell he or she may be on the day of the assessment, a decision maker would be entitled to decide that “good cause” was not be established notwithstanding the claimant’s “state of health at the relevant time” if those circumstances could have been foreseen and arrangements made to mitigate the risk of them resulting in the appointment being missed. This seems to me to be unreasonably harsh.
What if the pattern of the claimant’s symptoms is unpredictable, as was accepted in this case? Is it really incumbent on the claimant to make the case for a home visit?
If it were wouldn’t that be reflected in the regulations, especially given the severity of the consequences for a claimant? I think it would.”
He adds that “citing” health problems isn’t enough to establish “good cause”:
“An endless series of failed appointments would only result in a claimant avoiding forfeit if the decision maker or tribunal is persuaded on each occasion that the claimant’s health at the relevant time was such as to give him or her good cause for non-attendance. If a claimant is genuinely too unwell to attend a whole series of appointments for medical examinations that would tend to suggest that the claimant is someone who would be likely to qualify for Employment and Support Allowance and shouldn’t, therefore, be denied the opportunity to be assessed for it.
… In this case the appellant claims to have experienced a seizure on the day of the appointment for his medical examination. He says his seizures follow no set pattern and are wholly unpredictable. He says he was very unwell as a result of having his seizure and was in no fit state to attend his medical examination. None of this appears to have been disputed by the Respondent.
The Respondent says the Appellant should have anticipated the possibility of his having a seizure on the day of his appointment notwithstanding the lack of a pattern to his seizures. The decision maker appears to have assumed that the Appellant would have been able to keep his appointment for his medical examination had it been a home visit. Otherwise the argument that his “failure” to make arrangements for a home visit justifies dismissing the appellant’s argument for “good cause” is more difficult to maintain. However, is not clear on what basis this assumption was made. Given what the appellant says about the effect his seizures had on him in the hours following the seizure, which the Respondent has not disputed, it seems unlikely that even a home visit would have been successful.”
Judge Church therefore concludes:
“While I accept that the list set out in regulation 23 of the ESA Regulations of factors to be considered when determining whether a claimant has established “good cause” is inclusive and not exhaustive, and that therefore the decision maker and the Tribunal were entitled to consider other factors when they considered whether the appellant had “good cause” for not attending I consider that the decision maker and the Tribunal each applied the wrong test when they assessed the appellant’s reasons for failing to attend his medical examination in making.
While it is not inconceivable that circumstances may arise in which it might be reasonable to expect a claimant to engage in some degree of advance planning to maximise the chances of an appointment for a medical examination being kept, such a case would be exceptional and clear and cogent reasons would have to be provided to explain why the claimant was under such an obligation in the particular circumstances of that case. It is not reasonable to infer a general obligation on claimants to engage in a significant degree of forward planning in the absence of any express obligation being placed on them by the ESA Regulations.”
Tribunal must provide very clear reasons if it dismisses appeal after claimant rejects a preliminary award ‘offer’/ Guidance on fair procedure when sharing a preliminary view
Case law ref: PIP
Upper Tribunal Judge: Brunner
File number: CPIP/2086/2018
The claimant, who has post-traumatic stress disorder, was awarded PIP with the standard rate of the daily living component, and no mobility component.
Following his mandatory reconsideration request, this decision of 4 July 2017 was revised such that there was no award for PIP.
The claimant appealed and claimed entitlement to PIP with the enhanced rate of the daily living component, and the mobility component.
At the beginning of the hearing the First Tier Tribunal (FTT) made what it referred to as an ‘offer’:
“… the FTT considered the papers in preview and discussed the matter with the representative to reinstate the previous award. The representative who was an experienced representative (who is then named) went out to take instructions from the claimant for some 10 minutes. He came back into the Tribunal room and said that his client was not prepared to accept the offer. The Tribunal indicated that it was open to them to make any decision that they considered appropriate in the circumstances.
… the Tribunal offered to reinstate the original award to the appellant. He declined this. The Tribunal made it clear that all options were open if the appellant declined to accept the reinstatement of the previous award. Furthermore, he was represented by an experienced representative.”
Although the FTT did not specify the basis for their ‘offer’ in terms of points, it must be that they were referring to the original decision before revision, in which the claimant was awarded the standard rate of daily living.
After the ‘offer’ was refused, the FTT then proceeded to hold an oral hearing in which the claimant gave evidence. Following that hearing, the FTT decided that the claimant was not entitled to PIP. The FTT decided that the claimant was entitled to 4 points, 2 each for the activities of communicating and engaging with people, which was in line with the second HCP’s advice, and the Secretary of State’s revised decision.
In considering the claimant’s appeal, Judge Brunner highlights that:
“Procedural fairness is a central and essential feature of a lawful hearing. There are a number of sources of the right to fairness:
Procedural fairness is guaranteed by the common law principles of natural justice. These principles include the right to know what the matters in issue are, and the right to a fair opportunity to address them.
Article 6 ECHR guarantees the right to a fair hearing but adds little to the principles of natural justice in this context.
Procedural fairness is enshrined in the overriding objective under the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chambers) Rules 2008, which requires that cases are dealt with fairly and justly, including by seeking flexibility in the proceedings, ensuring that parties can participate fully, and avoiding delay.”
She then holds that the procedure adopted by the FTT was ill-advised. And was also in error of law in at least one respect: the FTT failed to give adequate reasons for its change of mind:
“The claimant would have understood from the ‘offer’ that the FTT’s preliminary view, based on the paperwork, was that 8 points were to be awarded under the daily living activities. The claimant would have inferred that:
(i) the FTT accepted the written evidence of the first HCP (p83) which recommended that 8 points should be awarded; and
(ii) the FTT rejected the second HCP’s written advice.
… The FTT was entitled to change its mind. Indeed, it was obliged to change its mind if, on a full exploration of the evidence, it considered that the claimant was not entitled to PIP. However, the course which the FTT had adopted meant that it was also obliged to give a clear explanation as to why it had changed its mind about two descriptors. Otherwise, the claimant would not understand why he had lost his appeal.”
She adds that It would not be possible for the claimant to understand from its statement of reasons what new information the FTT had heard or taken note of during the oral proceedings which led to its change of mind. The lack of a clear explanation for the FTT’s change of mind rendered the reasons so inadequate as to be in “error of law.”
Judge Brunner concludes by setting out the following detailed guidance about First-tier Tribunals sharing preliminary views with a claimant before an oral hearing:
“There is nothing in principle wrong with a tribunal coming to a preliminary view after a preview of the papers.
There is nothing in principle wrong with a tribunal sometimes sharing that preliminary view with the parties. To do so may be entirely in line with the overriding objective, demonstrating flexibility and seeking to resolve matters without undue delay.
An example may be where the tribunal has, on the papers, reached a clear view that the claimant is entitled to the highest award of the benefit in question. Another example may be where the tribunal accepts the claimant’s written submissions in relation to three of four issues in the appeal and wishes the claimant to direct his or her oral evidence to the one remaining issue. This is not an exhaustive list, and the appropriateness of this course will very much depend on the details of individual cases.
There are obvious dangers in sharing preliminary views, particularly in cases such as this where the tribunal’s preliminary view is a half-way house between the Secretary of State’s decision, and the award sought by the claimant. The danger in such cases is that a claimant may feel pressured into accepting the tribunal’s preliminary view and deciding not to give oral evidence, rather than taking the risk of losing everything.
That may result in the tribunal making incorrect decisions based on partial evidence. There is also a danger of the appearance of bias. The dangers may well be increased in cases where claimants are not represented. Tribunals should thus be cautious about sharing preliminary views and should not do so without a clear purpose in mind and having considered all the potential ramifications.
Where a tribunal does share its preliminary view it should do so in clear language which does not put pressure on the claimant to take any particular course. Language such as ‘offer’ is not appropriate. The tribunal should make plain that its view remains provisional until the conclusion of the proceedings, and that its ultimate view after hearing oral evidence might be more or less favourable to the claimant. The tribunal should inform the claimant of its purpose in sharing its preliminary view, which may be, as an example, that in the tribunal’s view oral evidence is not necessary on some of the issues, and so time and effort can be saved.
There is nothing in principle wrong with a tribunal realising in the course of proceedings that its preliminary view was wrong and changing its mind. Indeed, a tribunal is obliged to keep an open mind until the end of all of the evidence. A tribunal may realise that its preliminary view was wrong for a variety of reasons, such as learning some new information from oral evidence, or finding the claimant not credible.
Where a tribunal does share its preliminary view and then changes its mind, the tribunal should consider whether the principles of natural justice and the overriding objective require it to alert the parties to that change before the close of proceedings. (That may, of course, require a short break in proceedings for a panel to confer).
The tribunal should have in mind the right of the parties to know what the issues are and to have a fair opportunity to address them. The danger in some cases is that the claimant may believe that those matters which were accepted in the tribunal’s preliminary opinion are not in issue and may not have given all the relevant evidence about those matters.
This may arise, for example, where the tribunal has not sought oral evidence directly on an issue which in its preliminary view was decided in the claimant’s favour, but where the tribunal has heard tangential evidence which has changed its mind.
Where a tribunal has shared its preliminary view with the parties, this should be recorded in the Statement of Reasons.
Where a tribunal has shared its preliminary view and subsequently reached a different conclusion, the reasons for that change of mind should be clearly stated in the Statement of Reasons in addition to the usual reasons.”
Tribunal failed to give adequate consideration to seeking medical evidence from DLA award in PIP transfer case
Case law ref: PIP
Upper Tribunal Judge: Markus
File number: CPIP/2717/2018
The appellant had been in receipt of the lowest rate of the care component and the lower rate of the mobility component of DLA. Following his appeal against the decision to refuse him PIP, a First-tier Tribunal decided that he was entitled to 6 points for the daily living component and 4 points for the mobility component. As a result, it upheld the Secretary of State’s decision that he was not entitled to PIP.
The appellant then appealed to the Upper Tribunal on the grounds that the tribunal had not been provided with the evidence relating to the previous DLA award, and that the tribunal had failed to make adequate findings of fact or explain how it addressed conflicting evidence.
In making his decision in this case, Judge Markus highlights that he had earlier decided in CH and KN v SSWP [2018] UKUT 330 (AAC), in which he gives guidance as to the relevance of DLA evidence in appeals against PIP transfer decisions and when tribunals should consider obtaining DLA evidence in those appeals.
Judge Markus notes that The First-tier Tribunal acknowledged that the appellant had requested the DLA evidence. However, it decided that it did not need to seek that evidence because:
it considered that it had enough evidence in the documents already before it and the appellant’s oral evidence;
it was concerned with his condition in 2017 (rather than at the time of the DLA award); and
the conditions of entitlement for PIP were different to those for DLA.
He then says:
“In written submissions for this appeal, the Secretary of State’s representative noted that the DLA care component was for the “main meal test” due to lack of motivation. As this would only score 2 points under PIP daily living descriptor 1d, and as the Appellant had in any event been awarded 2 points under daily living descriptor 1b, it could not be said that any overlap between the daily living component of the DLA award and a potential PIP award could have resulted in a different decision regarding the daily living component. I agree.
The Secretary of State submitted that the position was different in relation to the mobility component. An award of the lower rate of the mobility component of DLA is made on the basis that a claimant “is able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time” (section 73(1)(d) of the Social Security Contributions and Benefits Act 1992). In the present case, the basis of the award to the Appellant had been that due to “anxiety or panic attacks” he needed “someone to guide or supervise [him] to walk outside in places [he did not] know well”. This was similar to PIP mobility descriptor 1d: “cannot follow the route of an unfamiliar journey without another person…”.”
In upholding the appellant’s appeal and setting aside the tribunal’s decision, Judge Markus holds as follows:
… I consider that the Secretary of State was correct to submit that medical evidence relating to the DLA mobility component award was likely to have been relevant in the light of the overlap between that award and the basis on which the appellant claimed to be entitled to PIP and because he said that there had been no change in (or even a deterioration in) his condition since then. However, as I also said in CH and KN, even if medical evidence relating to a previous DLA claim is relevant, that does not mean that a tribunal is always required as a matter of law to obtain it. There are no hard and fast rules, but I gave some general guidance in that case.
In the present case, the fact that the tribunal had been provided with other evidence relating to the PIP award, and had heard the appellant’s oral evidence, was relevant to its decision whether it should obtain the DLA evidence. However, the appellant disputed the HCP’s account of what he said during the medical examination.
The GP’s evidence regarding his ability to plan and follow a journey was vague and so did not assist materially. If there had been medical evidence in the DLA file, that may well have provided considerable assistance in resolving the particular dispute. As far as I can tell, the appellant had not told the First-tier Tribunal prior to or at the hearing that he had been medically examined for the purpose of the DLA award.
However, that is an obvious question that the tribunal could have asked of him. There is no indication that the tribunal appreciated the particular reason why the DLA evidence may have been of assistance in this case. The tribunal’s decision to proceed without seeking the DLA evidence was based on general considerations but without addressing the specific potential value of the evidence in the light of the disputed matters in this appeal. That does not mean that the tribunal could not have proceeded without the evidence, but rather that it failed to give adequate consideration to whether to do so.”
Supreme court rule that social support may be given before or during an activity
Case law ref: PIP
Supreme Court Judges: Lady Hale, Lord Kerr, Lord Hodge,
Lady Black, Lord Sales
File number: [2019] UKSC 34
The claimant had claimed PIP partly on the basis that he needed support to engage with other people because of his mental health problems. His claim was rejected, and he appealed to the First-tier Tribunal, which dismissed his appeal.
Activity 9 considers a claimant’s ability to engage with other people, which means to interact face-to-face in a contextually and socially appropriate manner, understand body language and establish relationships. The descriptors for Activity 9 are:
|
Descriptor |
Points |
|
Can engage with other people unaided |
0 |
|
Needs prompting to be able to engage with other people. |
2 |
|
Needs social support to be able to engage with other people. |
4 |
The First-tier Tribunal awarded 2 points on the basis that the claimant needed prompting – descriptor 9b, rather than social support – descriptor 9c (4 points).
However, the Upper Tribunal later found the First-tier Tribunal had failed to make adequate findings on the issue of what support the claimant needed and gave guidance on how that issue should be analysed. The Secretary of State appealed to the Court of Session then the Supreme Court.
The key issue before the Supreme Court in Secretary of State for Work and Pensions v MM [2019] UKSC 34 was what it means to need social support to be able to engage with other people’.
In a unanimous judgment, the Supreme Court holds:
a ‘narrow and technical’ approach to the regulations, supported by SSWP, is wrong;
PIP descriptors can overlap;
‘social support’ may consist wholly of ‘prompting’;
social support need not be simultaneous with the supported social interaction;
careful scrutiny is needed to establish whether a person is trained or experienced in giving that support;
the disability charity Mind’s evidence as intervener in the appeal showed claimants may often struggle to convey evidence about their disability, and that they may need support in a wide variety of ways. So, the DWP and tribunals may have to help by probing to ask the right questions.
In giving the Court’s judgment, Lady Black holds as follows:
“… the nature of the support provided might not differ between 9b and 9c. What brings the claimant into 9c rather than 9b is that, to be able to engage with others, he or she needs that support to come from someone trained or experienced in assisting people to engage in social situations.
... it is only after scrutinising the facts particularly carefully that the decision maker will be able to reach a determination. Although the provision is concerned with the help the claimant needs, rather than with the help which he or she is actually getting in practice, it seems likely that, in many family/friends’ cases, someone will already be carrying out the supportive role in face to face engagements.
Where this is so, the assessment/decision making process will be assisted by looking at the elements of the support that they actually provide, how they have come to know what to do, whether or not the sort of help that they provide could be provided by any well-meaning friend or family member, and what additional help (if any) is required.
… Everything will depend on the facts of the particular case, but they might include questions (sensitively put, of course) such as ‘why is that?’, ‘who would you trust in that role?’, ‘what sort of things could they do to help you engage?’, ‘how would they know what to do?’, ‘what would happen if that person was not there?’.
… Preparation might occur prior to the engagement which enables it to occur without, for example, overwhelming psychological distress. One technique that can be deployed is to look together, in advance of the meeting, at the ‘worst case scenario’.
During the meeting, with knowledge of the claimant, the supporter can watch out for things that are known to trigger his or her anxiety and redirect the conversation. Where memory is a problem, the supporter can remind the claimant of things they have forgotten. Private signs of reassurance can be given where required. And, where required, the supporter might recognise the need to remove the person from the meeting.
... the requirement that there should be a current need at all relevant times does not, of itself, exclude the possibility of assistance given outside the confines of the engagement itself.”
Finally, in relation to the issue of whether there must be a ‘temporal or causal link’ between the help given and the activity in respect of which the help is needed, Lady Black says:
“This is not a formulation that should, in my view, be adopted... It is difficult to envisage how support which is linked in time to a face to face engagement but has no causal link to what occurs could have any relevance.”
The Supreme Court return the appeal to the First Tier Tribunal for determination in accordance with its interpretation.
Tribunal erred in relying on claimant’s ability to drive when assessing PIP Mobility Activity 1
Case law ref: PIP
Upper Tribunal Judge: Wikeley
Neutral Citation Number: CPIP/2477/2018
In this decision, Judge Wikeley holds that the tribunal erred in law in concluding that an ability to follow an unfamiliar route whilst driving a car on her own meant the appellant could not satisfy either ‘following a route’ scoring descriptor under mobility activity 1?”
Judge Wikeley explains that in its reasons statement, the First Tier Tribunal (FTT) made multiple references in its reasons to the Appellant’s ability to drive to familiar places. In effect, he says, the FTT relied on its finding that the Appellant was able to drive as the sole determiner of her ability to follow the route of either a familiar or an unfamiliar journey.
He then sets out that there are three difficulties with this approach:
“First, the FTT did not adequately investigate how the Appellant would manage on an unfamiliar journey (it found that she would do a ‘practice run’ but the reasons do not make it clear whether she would need to be accompanied when doing so).
Second, the FTT did not consider whether the Appellant would need to be assisted for part of either a familiar or unfamiliar journey – Ms Blatchford contends that if the Appellant needed to be accompanied for parts of a journey outside her car, e.g. walking from a car park to the shops, whether that journey is familiar or unfamiliar, then she would potentially qualify for descriptors 1d or 1f.
Third, the FTT’s exclusive focus on the Appellant’s ability to drive meant that it neglected to address the representative’s argument that the Appellant could not cope with public transport.
Although the PIP Assessment Guide Part 2: The Assessment Criteria (DWP, November 2018) is in no way determinative (see SSWP v IV ((PIP) [2016] UKUT 420 (AAC)), I note that it states that “A person should only be considered able to follow an unfamiliar journey if they would be capable of using public transport –the assessment of which should focus on ability rather than choice” (p.111).
By the same token, as part of the overall and holistic assessment, a claimant’s ability to plan and follow a journey on foot must be considered (see MH v SSWP (PIP)[2016] UKUT 531 (AAC); [2018] AACR 12 at paragraphs 37 and 44).”
Consideration of ability to follow the route of a journey not limited to short journeys for purposes for purposes of PIP Planning and Following Journeys descriptors 1(d) and 1(f)
Case law ref: PIP
Upper Tribunal Judge: Hemingway
File number: CPIP/2567/2018
A First Tier Tribunal upheld the claimant’s appeal against the decision to refuse her PIP and awarded her standard rate of the mobility component. But she thought a greater award should have been made and asked for permission to appeal to the Upper Tribunal.
In granting her such leave to appeal, Upper Tribunal Judge Hemingway said:
“ The First Tier tribunal (F-tT), in allowing the appeal to the extent that it did, decided that the claimant was entitled to 10 points under mobility descriptor 1(d) because of an inability to follow the route of an unfamiliar journey without another person. If it had also decided she could not follow the route of a familiar journey without another person it would have awarded 12 points under mobility descriptor 1(f) and that would have established entitlement to the enhanced rate of the mobility component of PIP rather than the standard rate.
In explaining why it was not doing that the F-tT expressed the view that the evidence, overall, suggested an ability on the part of the claimant to cope ‘with a short familiar journey’ on her own. But I wonder whether the F-tT was entitled to confine its enquiry to short familiar journeys and then base its decision as to the applicable descriptor within mobility activity 1 on its conclusion as to that.
After all, a familiar journey is not necessarily a short one and it may be that some persons can manage some short familiar journeys but cannot manage lengthier familiar ones. Possibly this may be viewed as Upper Tribunal pedantry but, on the other hand, in SSWP v IV (PIP) 2016 UKUT420 (AAC) Upper Tribunal Judge Jacobs suggested that a journey envisaged under the PIP mobility component is not necessarily a local one.
That is so notwithstanding an indication in the PIP Assessment Guide that only local journeys should be considered. So, it might be that the F-tT was required to undertake a more holistic consideration encompassing an ability or inability to make various types of familiar journeys and then reach an overall conclusion once it had done that. But possibly another way of looking at it might be to say that so long as the claimant is able to undertake any familiar journey (be it short or long) that is sufficient to preclude entitlement under mobility activity 1(f). But I am satisfied the point at least merits further consideration. So, I have granted permission to appeal on that single basis.”
Judge Hemingway says that in SSWP v IV (PIP) 2016 UKUT420 (AAC) it was stressed that what was important in the context of an evaluation of an ability to follow the route of a journey, was not the destination but the route.
Also, that the focus ought to be upon the effect of the mental condition a claimant suffers from in following a route. It is explained that the test is general in nature, without reference to the individual characteristics of the route whether by destination or any other factor.
While agreeing with this, Judge Hemingway concludes as follows:
“But even in focusing upon the impact of following a route or attempting to follow a route will have upon a claimant, different issues may arise on lengthier journeys than would do on short ones. It might be that in certain circumstances certain claimants may find any adverse impact upon journeying outdoors will build up over time so that a journey of some length, even on a familiar route, might be precluded where a shorter one would not be.
It would be wrong, though, to focus overly on the length of a journey. Doing so would probably generate difficult debate as to what might constitute a long journey and what might constitute a short one.
So, what is required is a general overall assessment of a claimant’s ability to follow the route of a (in this case) familiar journey which does not focus unduly upon the length be it long or short. But here the tribunal did appear to confine itself to short journeys and having satisfied itself that the claimant could manage such a journey, decided that the requirements of mobility descriptor 1(f) were not met.”
Claimant’s entitlement to know the case he has to meet/Tribunal’s duty to correct unfairness caused by inadequacy of Secretary of State’s response
Case law ref: PIP
Upper Tribunal Judge: Poytner
File number: CPIP/580/2018
The claimant had appealed to the Upper Tribunal with decision of the First-tier Tribunal which had confirmed the Secretary of State’s decision that he was not entitled to any component of PIP.
In allowing the appeal, Judge Poynter holds that the First Tier Tribunal had inadvertently infringed its duty to treat the claimant fairly by omitting to take steps to rectify the inadequacy of the Secretary of State’s response.
Judge Poynter holds that the Secretary of State’s response as it:
did not include a list of the PIP activities and descriptors;
contained only one express reference to the legal provisions on which the Secretary of State relied as authority for the propositions she was making;
did not include copies of any legal materials;
concluded with the general statement: “The law for PIP can be found at: http://www.legislation.gov.uk /ukdsi/2013/9780111532072/contents and www.dwp.gov.uk/publications/specialist-guides/law-volumes” which he then explains was, at best, misleading and, at worst, incorrect.
Judge Poynter says that the Tribunal’s written statement of reasons shows that the Tribunal applied the correct substantive law despite the inadequacy of the Secretary of State’s response.
However, he then adds that:
“… the response is not just for the benefit of the Tribunal. It also serves the function of informing appellants of the criteria that were applied to reach the decision and, thereby, the matters that they have to establish if they are to win their appeals. In my provisional judgment, the response in this appeal did not properly explain either set of criteria. In those circumstances, and as presently advised, I cannot see how it would have been possible for [the claimant] properly to prepare his case.
… That had the potential to cause unfairness because it denied the claimant information that
he needed to prepare his case properly.
If the claimant had opted for a decision without a hearing, it would have been necessary for the First-tier Tribunal to direct the Secretary of State to correct the response.
As this appeal in fact went to an oral hearing, the very least the Tribunal needed to do was to draw the point to the attention of the claimant, seek his comments and provide him with any information for which he might reasonably have asked about the descriptors and the way in which entitlement to PIP is assessed.
An adjournment might then have been necessary, although not inevitably so if the claimant had then been willing for the hearing to proceed.
I can see no indication that the Tribunal in this case did that. It may well have been unaware of the point itself.”
Judge Poynter finishes by saying:
“ I therefore conclude that there has been an inadvertent breach of the Tribunal’s duty to act fairly towards the claimant. That is an error of law and, as I cannot say that it would not have affected the outcome, I set the Tribunal’s decision aside and remit the case for reconsideration.”
Whether tribunal should have considered adjustments to assist a vulnerable claimant to give evidence
Benefit: PIP
Upper Tribunal Judge: Poynter
File number: CPIP/1271/2018
The claimant had been diagnosed as having an Autistic Spectrum Condition together with depression, anxiety and agoraphobia.
Following a tribunal upholding a decision that he was not eligible for PIP he appealed to the Upper Tribunal.
His principal grounds of appeal were that the hearing was conducted in a manner that was unfair to the claimant and indicated bias against him.
Specifically, the claimant’s representative submitted that the hearing was conducted in a confrontational manner, contrary to the inquisitorial, impartial, function of the First-tier Tribunal.
For example, they submitted that the medically qualified member of the panel asked the appellant, in a confrontational tone, at least five different times, directly, why he had not asked his GP for more support either with medication or talking therapies.
In addition, the medical member was said to have interrupted other members of the panel, causing an effective ‘crossfire’ of questions.
The record of proceedings included a note that the representative protested at the end of the hearing that the hearing had been a cross-examination and that that this might become a point of appeal.
Judge Poynter comments first that:
“If the grounds of appeal that I have quoted above are correct, then the way in which the hearing was conducted was unacceptable.”
He then explains that:
“Under rule 2(1) and (3) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 ("the SEC Rules") the Tribunal is obliged to exercise its power to regulate its own procedure (see rule 5(1)) so as to give effect to the overriding objective of dealing with the case fairly and justly.
Under rule 2(2)(c), that includes “ensuring, so far as practical, that the parties are able to participate fully in the proceedings”. The Tribunal is entitled to test the evidence of any witness who appears before it, and in particular may often have to ask the claimant difficult and searching questions.
But there is no need for such questions to be asked in a confrontational manner and doing so tends to undermine the overriding objective by inhibiting the claimant’s full participation in the proceedings rather than enabling it.”
However, Judge Poynter says that in this appeal he did not have to decide whether the procedure followed during the hearing was fair as “given the medical evidence, the Tribunal made a more fundamental error of law before the hearing had even begun.”
He then sets out that the error of law was that, before the hearing, the tribunal by failed to consider ‘how to facilitate the giving of any evidence by a … vulnerable adult’ as required by the First-tier and Upper Tribunal Practice Direction Child, Vulnerable Adult and Sensitive Witnesses.
Judge Poytner then gives a lengthy and detailed analysis of the Practice Direction and its reference to the definition of a “vulnerable adult” in the Safeguarding Vulnerable Groups Act 2006 (SVGA).
He then concludes that the definition “continues to be to section 59 of SVGA as it was worded on 30 October 2008 when the Practice Direction was made.”
But the wide nature of the definition of vulnerable adult says Judge Poynter, results in almost every adult who appeals to the Social Entitlement Chamber falling within its definition.
This results in him setting out guidance as to how tribunals should consider the definition of a vulnerable adult and how to apply the Practice Direction:
“… whether or not a failure to follow the Practice Direction is material falls to be decided on the facts of each individual case. The First-tier Tribunal would therefore be well-advised to adopt the practice of considering—as part of the its preview of each appeal—whether special arrangements need to be adopted to facilitate the giving of evidence.
Such arrangements might perhaps be no more than deciding that what would normally be regarded as an acceptable robust style of questioning was not appropriate in an individual case.
In circumstances where special arrangements have been put in place—or where there might be doubt as to whether they should have been—it would be wise for the tribunal to record briefly in its record of proceedings that the Practice Direction had been considered. A single sentence should suffice. If a written statement of reasons is requested in such a case, the statement must then explain what the tribunal decided about the requirements of the Practice Direction and why.”
He also gives the following guidance to representatives:
“ Representatives who consider that the Practice Direction requires special arrangements to be made to enable their clients to participate fully in the proceedings should therefore write to the Tribunal at the earliest opportunity and request the necessary directions.
Such a request should give details of the specific arrangements that are considered desirable and be realistic about the sort of arrangements the Social Entitlement Chamber is likely to be able to make.
I appreciate, of course, that representatives are sometimes instructed late in the day. However, where an experienced and competent representative has been on the record for a significant period and special arrangements have not been requested, that is a factor – not the only factor, but a factor– that the Tribunal may take into account when deciding whether special arrangements are needed.”
Judge Poynter concludes by setting the tribunal’s decision aside for rehearing and holding as follows:
“ There are cases in which deciding whether a failure to follow the Practice Direction is material will involve difficult questions, requiring close analysis and judgment.
This is not such a case.
“ Wherever the line between material and immaterial is to be drawn, failing to follow the Practice Direction where a claimant has a documented diagnosis of autistic spectrum disorder is on the wrong side of it.
I therefore judge that the First-tier Tribunal made a material error of law by failing to follow the Practice Direction in this case or, alternatively, if it did so, by failing to record that it had done so and to explain its apparent decision that no special arrangements were appropriate.”
Crutches can be an aid for dressing or undressing if reasonably needed by claimant who needs to stand to complete the activity
Case law ref: PIP
Upper Tribunal Judge: Ward
File number: CPIP/285/2019
The appellant had neurological problems affecting his balance. He had appealed to the First Tier Tribunal (FtT) against a decision refusing him PIP. The FtT awarded him a further 2 points for the daily living component, taking the total to 6, and 10 points for the mobility component. The appellant sought to appealed further to the Upper Tribunal.
In granting leave to appeal limited to the FtT’s treatment of activity 6 (“dressing and undressing”), Judge Ward said:
“ It is clear from the evidence that what he sat on was the bed, not a wheelchair. CW v SSWP (PIP) [2016] UKUT 0197 (AAC) is a reported decision and so commanded the broad assent of the majority of salaried judges of this Chamber.
It was followed by Judge Markus QC in AP v SSWP (PIP) [2016] UKUT 501 (AAC), in which there was a head-on challenge to the correctness of CW v SSWP. Sitting on a bed to dress (without more), because a person without disability may do so in order to dress, is ruled out by those cases.
However…the … evidence … appear[s] to tell a broadly consistent story – that the appellant sits on the bed to dress, but then has to rise, using his crutches and stand with support from, I assume, one of them while inserting his second leg into his trousers and (at the risk of spelling out the obvious) pulling the trousers fully into position and doing them up.
What arguably distinguishes this case from the unsuccessful cases where a bed was sat on to dress is the use of crutches to get up from it and then to aid balance to finish off the dressing process.
The FtT arguably fails to make findings about how the appellant could dress (completely) whilst seated (Reasons para 38) and, if there is a final stage [in] relation to trousers which cannot be performed whilst seated, how the appellant can safely perform that without an aid or appliance (crutches).”
The Secretary of State submitted to Judge Ward that given what the appellant had said at the hearing about the need to stand up using a crutch to put his trousers on, the FtT needed to make a finding as to whether he did need to or whether he could manage whilst sat down; if the former, then it would be open to an FtT to conclude that the appellant needed an aid (his crutches) to dress and undress.
That potentially offered a further 2 points which taken with the 6 already awarded would take the appellant to the threshold for an award of the daily living component. As a result, the FtT had materially erred in law.
In accepting this Secretary of State’s submission and upholding the claimant’s appeal Judge Ward says:
“ I direct that the tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.
While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.”