IN THE UPPER TRIBUNAL	Case No.  CDLA/107/2012
ADMINISTRATIVE APPEALS CHAMBER

Before Judge E A L BANO

Decision:  My decision is that the decision of the First-tier Tribunal involved the making of an error on a point of law.  I set aside the tribunal’s decision and remit the case to the First-tier tribunal for re-hearing before a differently constituted tribunal.

REASONS FOR DECISION

1.	The claimant is a woman now aged 64 with arthritis, peripheral artery disease and depression who was in receipt of higher rate mobility component and lowest rate care component of disability living allowance for an indefinite period from 8 October 2006. Following a heart bypass operation, she applied on 27 August 2010 for her award to be superseded, stating that there had been no change with regard to her mobility needs, but that her care needs had increased as a result of the operation. However, a decision was made on 4 October 2010 maintaining the existing award.  The claimant appealed against that decision, and although it was reconsidered in the light of a new consultant’s report, it was not revised.  The appeal therefore proceeded to a hearing on 16 August 2011.

2.  The claimant was warned at the outset of the hearing that her award could be reduced, but she nevertheless decided to proceed with the appeal.  The tribunal continued the award of lowest rate care component on the basis of the ‘cooking test’ but also decided to remove the award of highest rate mobility component.  Having referred to inconsistencies in the claimant’s evidence, the tribunal stated that they preferred the consultant’s evidence where it conflicted with the information provided by the claimant.  The tribunal continued:

“The Tribunal did not consider that there was reliable evidence on the balance of probability on which to make findings of fact that the Appellant was virtually unable to walk.  The Tribunal considered that such a finding would be inconsistent with the Surgeon recommending walking exercise and inconsistent the appellant going shopping in Asda.”

The tribunal then “found as a fact” that the appellant was not virtually unable to walk and then concluded “on the basis of the findings of fact that the appellant can walk a significant distance before the onset of severe discomfort and does not need supervision or guidance”.

3.  A district judge refused to admit a late application for permission to appeal against the tribunal’s decision, but on 7 March 2012 Judge Howell admitted the renewed application and gave permission to appeal on the following grounds:

“I consider it arguable that the tribunal misdirected itself on the relevant burden of proof to apply…especially when taking away an entitlement that was not disputed by the Secretary of State; and also in failing to make and record any clear findings of fact of its own as to how far and in what manner the claimant was actually able to walk without severe discomfort”.  

4.  In a submission dated 28 May 2012 supporting the appeal, the Secretary of State’s representative accepted that the tribunal had power under section 12(8)(a) of the Social Security Act 1998 to consider entitlement to higher rate mobility component even if it was not an issue raised by the appeal, but submitted that the tribunal had acted unfairly in not giving the claimant a specific further warning during the course of the appeal that they were minded to remove higher rate mobility component in order to give her an opportunity either to deal with the issue or withdraw the appeal.  The Secretary of State’s representative also agreed that the tribunal had made inadequate findings of fact on the claimant’s walking ability.

5.  In CDLA/884/2008 Mr Commissioner Rowland, as he then was, cautioned tribunals against too readily making decisions less favourable than the decision under appeal.  He pointed out that there is a danger that the tribunal may be seen both as judge as prosecutor and that  it may be difficult to give the appellant sufficient warning of the risks of proceeding with the appeal without appearing to have pre-judged the case.  The Commissioner also drew attention to what the Tribunal of Commissioners said in R(IB) 2/04 (at paragraph 94):

“There must however be a conscious exercise of this discretion and (if a statement of reasons is requested) some explanation in the statement as to the reasons why it was exercised in the manner it was.  In exercising the discretion (under section 12(8(a)), the Appeal Tribunal must of course have in mind, in particular two factors.  First, it must bear in mind the need to comply with Article 6 of the Convention and the rules of natural justice.  This will involve, at the very least ensuring that the claimant has had sufficient notice of the tribunal’s intention to consider superseding adversely to him to enable him properly to prepare his case.  The fact that the claimant is entitled to withdraw his appeal any time before the appeal tribunal’s decision may also be material to what Article 6 and the rules of natural justice demand.”

6.    Although a tribunal has the same powers as the Secretary of State to supersede a decision of its own initiative (see paragraph 96 of R(IB) 2/04), its functions are nevertheless appellate.  A claimant should not therefore be placed at a disadvantage by having no prior notice of the need to deal with entitlement to a component of DLA which the tribunal has put in issue acting on its own initiative. Even if in those circumstances an adjournment is not needed for further evidence to be obtained, it will be necessary to ensure that the appellant has a proper opportunity of dealing specifically with those aspects of the evidence which the tribunal consider call into question any aspect of entitlement which the Secretary of State has not previously put in issue.

7.  The claimant in this case did not however appeal on the ground that the hearing was not conducted fairly and it is not clear from the record of proceedings whether she was in fact placed at any disadvantage by the tribunal’s decision to deal with entitlement to higher rate mobility component.  Although the Secretary of State has supported the appeal on the basis of unfairness at the hearing, I am not therefore prepared to allow the appeal on this ground without further investigation.

8.  I consider however that it is unnecessary to take this matter further because in my view the appeal must be allowed on other grounds.   Although it is not entirely clear what the tribunal meant in the passage in the statement of reasons set out in paragraph 2 above, it is apparent that in relation to higher rate mobility component the tribunal addressed itself solely to the question of whether the appellant satisfied the conditions of entitlement.  That approach overlooked the fundamental requirement that the award of higher rate mobility component could be removed only if the tribunal was satisfied of the existence of a valid supersession ground.

9.  As the Tribunal of Commissioners explained in paragraph 91 of R(IB) 2/04, if a tribunal takes the view that an existing award does not appear to be justified, it can then consider  whether the award should be superseded.  The findings of fact on which any supersession decision is based may need to be spelt out in some detail in view of the requirement in paragraph 10(4) of R(IB) 2/04 that the supersession ground must form the basis of the supersession, in the sense that the original decision can only be altered in a way which follows from that ground.  In the absence of any other explanation, the failure of the tribunal in this case to deal with the supersession issue also leaves it unclear why they decided to exercise their discretion under section 12(8)(a) of the Social Security Act 1998 to consider an issue that was not raised by the appeal.

10.  Finally, I agree with the Secretary of State’s representative that the tribunal failed to make the findings of fact needed in order to decide whether the claimant satisfied the conditions of entitlement to higher rate mobility component.  Whether a person is virtually unable to walk is not a fact, but a statutory test of entitlement.  In order to decide that question, the tribunal needed to make specific findings of fact on the claimant’s distance, speed, duration and manner of walking without severe discomfort.  Their failure to do so means that the appeal must be allowed on this ground also.

11.  The decision of the tribunal must therefore be set aside and, since I am not in a position to make the findings needed to determine entitlement to benefit, I remit the appeal for redetermination by a fresh tribunal.  The new tribunal should bear in mind that it is dealing with an appeal against a refusal to supersede on the basis of a change in circumstances, so that it will have to decide if there has in fact been a deterioration in the claimant’s condition since the original award was made.  The issues in the appeal are supersession and entitlement in relation to the care component.  Although the tribunal has power to consider supersession and entitlement in relation to mobility component, it will need to state why it has decided to exercise that power if it decides to do so.  Before doing so, it should have careful regard to the guidance of Mr Commissioner Rowland in paragraph 11 of CDLA/884/2008:

“If a tribunal does not consider the correctness of an award that is not directly in issue before it, it does not follow that it should do nothing if it has doubts about the award.  The chairman is at liberty to draw the doubts to the Secretary of State’s attention in the decision notice and can arrange for the parties to be sent a copy of the record of proceedings (including his or her note of evidence) without them having to request it.  That would enable the Secretary of State to consider a supersession or revision and, in disability living allowance cases, would often avoid the possibility of there having been an overpayment, which is often a consequence of a tribunal considering the issue and which often worries claimants more than the mere cessation of entitlement.”

12.  For those reasons, my decision is as set out above.
E A L BANO
5 September 2012