DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

The decision of the Harlow First-tier Tribunal dated 16 March 2011 under file reference 133/10/01417 involves an error on a point of law and is set aside.

The Upper Tribunal is not in a position to re-make the decision under appeal.  It therefore follows that the appellant’s appeal against the Secretary of State’s decision dated 13 May 2010 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.

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

DIRECTIONS

The following directions apply to the re-hearing:

(1)	The re-hearing should be at an oral hearing. 

(2)	The new tribunal should not involve the tribunal judge or members who sat on the tribunal that considered this appeal at the hearing on 16 March 2011.

(3)	If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the regional office of the HM Courts and Tribunals Service (HMCTS) in Birmingham within one month of the issue of this decision.  Any such evidence will need to relate to the position as it was in May 2010, not today.

(4)	The Secretary of State should prepare a supplementary submission for the re-hearing. This submission should include all the documentary evidence used to make the previous awards of higher rate mobility and middle rate care (for the periods 19.09.2007 – 08.04.2008 and 09.04.2008 – 23.12.2008).

(5)	The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal.  Depending on the findings of fact it makes, the new tribunal may end up reaching the same or a different result to the outcome of the previous tribunal.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.  

DECISION OF THE UPPER TRIBUNAL
REASONS FOR DECISION

Summary
1.		The decision of the First-tier Tribunal (FTT) involves an error of law, for the reasons that follow. The FTT’s decision is set aside (as having no effect). There will need to be a fresh hearing before a new FTT. That tribunal will re-hear the appellant’s original appeal against the Secretary of State’s decision on his disability living allowance (DLA) claim.

2.		Simply because this appeal to the Upper Tribunal has succeeded on the law does not necessarily mean that the appellant will win at the FTT re-hearing on the facts. The underlying merits and strength of the appellant’s case are still to be decided. Although the appellant has so far obviously had the advantage of help with this appeal from his family, he may well be able to get further assistance from an organisation such as Citizens Advice or a law centre or welfare rights agency.  

The background to this appeal to the Upper Tribunal
3.	The claimant, who has a number of conditions, including arthritis, limb length discrepancy and learning difficulties, appeals to the Upper Tribunal with my permission. The Secretary of State (in a decision dated 13.05.2010) had decided that the appellant was entitled only to the lowest rate care component of DLA. The appellant lodged an appeal.  

4.	The FTT confirmed the unlimited award of the lowest rate of the care component (but with some reservations). The appeal itself, arguing for either rate of the mobility component or an increased rate of the care component, was dismissed.

The proceedings before the Upper Tribunal
5.	When giving the appellant permission to appeal, I commented as follows:

“1.      I am giving you permission to appeal against the First-tier Tribunal (FTT)'s decision, but not necessarily for the reasons that you give in your application to the Upper Tribunal. I must also make it clear that the Upper Tribunal does not re-hear the case on the facts - I can only change the FTT's decision if they have made an error of law. For that reason you may find it helpful to get advice from a law centre, neighbourhood advice centre or citizens advice bureau (CAB) about your appeal to the Upper Tribunal.

2.      There are three aspects of the FTT's decision on which the comments of the Secretary of State are invited. 

3.      First, did the FTT in this case understand the previous claims history and give adequate reasons for its decision? I note that the appellant had previously had an award of higher rate mobility and middle rate care from 18.09.2007 until 17.03.2009 (doc 115). There was then an award of lowest rate care (but no mobility) from 18.12.2009 (doc 48) (later changed to a nil award on 18.02.2010 [doc 91] but reinstated on 13.05.2010 [doc 101]). It is not immediately clear to me whether there was an award in place from 18.04.2009 until 17.12.2009. The Department appeared not to have complied with direction 1 made by the FTT on 15.11.2010 (doc 113).  Should the FTT have adjourned again for a full claims and awards history? There was some discussion at the hearing (see doc 128), but the FTT's statement of reasons at paragraph 2 still appears to misunderstand the basis of the appeal.

4.      Second, should the FTT have simply (as it did apparently) left the main meal test to one side? The decision notice states that the appellant is entitled to lowest rate care on the main meal criteria (doc 129) but then makes no findings of fact to support that conclusion in the statement of reasons.

5.      Third, did the tribunal provide an adequate explanation for its decision as regards lower rate mobility? I note the observations of Mrs Commissioner Brown in Northern Ireland reported decision R 1/07 (DLA), where, dealing with legislation in the same terms, she ruled as follows (at paragraph 9):

"I consider the Department's submission to be correct in that the tribunal concluded that the ability to plan a journey, drive a car and therefore react to road conditions was indicative of clear headedness and competency. Such clear headedness and competency is a matter which is obviously relevant to the ability to walk on unfamiliar routes without guidance or supervision. I consider the Department to be correct that it was the possession of those abilities upon which the tribunal relied, not the claimant's ability to use familiar routes. When driving no matter whether a route is familiar or not there can be varying traffic conditions, emergency situations, pedestrians etc. The ability to drive even on familiar routes is evidence of clear headedness and competency. It is quite obvious from the tribunal's findings, where it specifically referred to the ability to walk on unfamiliar routes, that it has not misinterpreted the test for the lower rate of the mobility component. It has merely used the evidence of driving as showing clear headedness and competency indicative of ability to walk unsupervised and unaccompanied."

6.      However, in the present case, did the tribunal really have both the evidential basis and the findings of fact to justify the inferences it drew from the appellant's driving (which may have been solely on familiar routes)?”

6.	Mr Mick Hampton, who now acts for the Secretary of State in these proceedings, has provided a detailed submission on the grounds of appeal. Unfortunately the main recommendation in that submission is perhaps not entirely clear. At paragraph 3, he suggests that the FTT erred in law and proposes that I allow the appeal, set aside the FTT’s decision and order a fresh hearing. This seems to be on the basis that the tribunal should have explained why the lowest rate care component was awarded (see paragraph 10). Yet at paragraph 12 he argues that the FTT reached a decision it was entitled to do on the evidence before it and gave adequate reasons. However, I take the view that this last comment was directed solely to the third point (the question of any entitlement to lower rate mobility) mentioned in the extract from the grant of permission, and not to the appeal as a whole.

7.	I could seek further clarification of the Secretary of State’s position. However, I take the view on balance that this appeal to the Upper Tribunal is supported. I am also conscious that the appellant has had to wait a long time to get this far. I therefore take the view I should go ahead and decide the appeal without further delay. I will deal with each of the three points identified above.

(1) The previous claims history
8.	Mr Hampton argues, in short, that the FTT had a sufficient understanding of the claims history to appreciate that the questions which it had to decide were: (1) was the appellant entitled to either rate of the mobility component; and (2) was the appellant entitled to more than the lowest rate of the care component of DLA? He also says that the comment in the FTT’s statement of reasons that the appellant was appealing “against the decision dated 13 05 10 that he is not entitled to the lowest rate of the care component” (at paragraph 2) was an obvious “slip of the pen” – the tribunal judge wrote “not entitled” when he actually meant “only entitled”.

9.	I agree with those observations. The statement at paragraph 2 was a slip of the pen – as was the failure to record the names of the other two panel members who sat with the tribunal judge (their names appear on the record of proceedings but were accidentally omitted from the statement of reasons). It is also clear to me that in broad terms the FTT appreciated the essential scope and basis of the appellant’s appeal.

10.	Where I differ from Mr Hampton is in this respect. A previous tribunal had very sensibly asked the Secretary of State to provide copies of previous awards and supporting evidence (adjournment notice of 15 November 2010). The Department did not comply with that direction, although the appellant helpfully provided a copy of an earlier award notice for higher rate mobility and middle rate care. The FTT on 16 March 2011 decided to go ahead in any event. That was, of course, a case management decision that was open to them, if they considered that they could still deal with the matter fairly and justly. However, the FTT did not explain why they chose to do so, either in the decision notice or the statement of reasons.

11.	Mr Hampton has now helpfully supplied a full claims history (doc 156). This shows that the appellant had an award of higher rate mobility and middle rate care between 18 September 2007 and 8 April 2008, since when he has had a series of awards of lowest rate care (and no award of either rate of the mobility component). The file does not contain any of the supporting evidence that underpinned the earlier higher awards.

12.	One of the appellant’s main points throughout this appeal is that he has had a “blue badge”, as issued by his local authority to people with severe mobility problems. He cannot understand why he has had that badge but does not qualify for the higher rate mobility component of DLA. The FTT dealt with this point as follows (at paragraph 7 of the statement of reasons):

“It may be that the conditions for an award of a blue badge were different from those for Disability Living Allowance or it may be that the badge was issued in error.”

13.	It is certainly true that the conditions are not the same. An award of higher rate mobility should lead automatically to a blue badge award, but blue badges may be issued for other reasons. There are also different assessment processes. Thus the directgov.uk website explains that a person without an award of higher rate mobility may still get a blue badge if they “have a permanent and substantial disability which means they cannot walk, or makes walking very difficult”. The blue badge scheme is in any event currently under review, given the planned introduction of personal independence payments (PIP) to replace DLA. It is also probably right that blue badges are sometimes issued in error. However, in the circumstances of this case, the FTT’s explanation did not go far enough. I say that for two reasons.

14.	The first reason is that it is now clear that the appellant had had a previous award of the higher rate of the mobility component of DLA between 2007 and 2008. He may well have successfully applied for his blue badge at that time. In that case, the tribunal should have investigated the basis for the previous award of higher rate mobility. The award may have been simply on the basis of the appellant’s own account of his problems. However, there may have been an examining medical practitioner’s report or other medical evidence. The FTT should have explored whether such evidence was still available.

15.	The second reason is also peculiar to the facts of this case. The appellant had sent the FTT a copy of a letter from his local authority. The letter was from the department in the county council with responsibility for administering the blue badge scheme. This letter stated categorically that the degree of disability in walking “should not fall short of that required to qualify for ... the higher rate of the [mobility] component of Disabled Living Allowance”. This statement reinforced the need for a closer investigation of the claims history.

16.	My conclusion is that even though the FTT had identified the basic scope of the appeal, they did not adequately explain why the appellant was not entitled to the higher rate mobility component. The tribunal needed to have a clear understanding of the basis for the previous award and should have dealt more fully with the appellant’s point about his blue badge entitlement. This amounts to an error of law such that I should allow the appeal and set aside the tribunal’s decision.

(2) The lowest rate care component
17.	The FTT’s decision notice stated that the appellant was entitled to the lowest rate care component because he satisfied the main meal criteria. The tribunal added that “the existing award may not be appropriate but it is up to the Secretary of State to reconsider”. The FTT’s statement of reasons did not deal further with this point (other than by way of the passing “slip of the pen” comment noted above).

18.	Mr Hampton argues that the FTT should have given the appellant a warning that by making an appeal he was putting the original award in issue. Mr Hampton also says that the FTT should have explained why the lowest rate care component was awarded, given that it did not appear to be supported by the medical report obtained for the Department. 

19.	I find no error of law here. Although this tribunal had not given the appellant a warning, the tribunal which issued the adjournment notice had given him a clear warning that the existing award might be removed. As a matter of best practice it might well be desirable for that warning to be repeated, but I am not satisfied that there was an error of law here. Equally, the appellant was not questioning the award of lowest rate care component, beyond arguing that he should have been awarded an increased rate. On that basis the question of the main meal test was strictly not “raised by the appeal” (within section 12(8)(a) of the Social Security Act 1998) and the FTT was quite entitled to proceed as it did. In effect, the FTT was saying to the Secretary of State “the award of lowest rate care looks a bit iffy to us, but it’s not actually been questioned in this appeal and so we are not stating a firm view either way”. That approach displays no error of law.

(3) The lower rate mobility component 
20.	The FTT’s reasoning on this issue was short (there were no other findings that might be thought to be directly relevant to the question of entitlement to lower rate mobility):

“We do not accept that a person who can drive a car can be said to be so severely disabled that he is likely to wander off and need guidance or supervision when walking in unfamiliar places. We find little reliable evidence or any propensity to panic attacks”.

21.	The appellant’s original claim form referred to a tendency to wander off and the risk of panic attacks. It also referred to problems with getting about due to his learning difficulties. The appellant told the Department’s examining doctor that he had problems with reading and writing and struggled with correspondence, getting his partner or family to help. The doctor noted at the examination that the appellant declined to do serial sevens (counting down from 100 in sevens) and could not calculate £1 minus 25 pence.

22.	Mr Hampton argues that the FTT’s approach was justified by the reasoning in the Northern Ireland Commissioner’s decision R 1/07 (DLA). I do not doubt the analysis of Mrs Commissioner Brown in that case. However, as Mr Commissioner (now Judge) Mesher stated in unreported decision CDLA/3484/2007 (at paragraph 9):

“I respectfully agree, but note that such matters were merely said to be relevant, not decisive. Everything depends on the circumstances of particular cases. In cases where psychological problems like anxiety or depression play a part a claimant may feel safe and secure in a car, but not when walking. Abilities to perform competently in some areas do not necessarily translate across to other areas and the fact that the difference cannot be rationally explained does not mean that it is not genuine.”

23.	We do not know the nature of the claimant’s disability from the report of the decision in R 1/07 (DLA). There is nothing to suggest that it had anything to do with learning difficulties. In this case Mr Hampton says that no reason was given for the appellant not driving in unfamiliar areas. He adds that it was clear from the appellant’s oral evidence at the FTT hearing that he could read road signs in order to pass his driving test. However, that is only part of the story. I note that the appellant is now aged 52. What the appellant actually said to the FTT was noted in the record of proceedings as follows (with the panel’s questions in bold):

“Paper is a blank to me. Read? Nothing – took long time to write my name. Driving licence? Not hard to get then but shocked myself when I passed it. Couldn’t do it now. Road signs? Not so many then, they only asked about 2-3 road signs, got it at 21. Any difficulty driving? Signs are harder – she is with me all the time. Drive alone? Short distances.”

24.	In those circumstances I take the view that the FTT’s findings of fact and reasons as set out in paragraph 20 above are simply not adequate and amount to a further error of law. The FTT needed to make more specific findings of fact about e.g. the effect of the appellant’s learning difficulties, his literacy problems, his ability to ask strangers for and understand directions, his ability use a mobile telephone, etc. The question of the use of different types of evidence in relation to familiar and unfamiliar routes is the subject of some very helpful guidance by Mrs Commissioner Parker in reported decision R(DLA) 2/08 (at paragraphs 11-15).

The Upper Tribunal’s decision summarised
25.	For the reasons explained above, the FTT’s decision involves an error of law.  I therefore set aside the tribunal’s decision, which now has no effect. I also direct a re-hearing.

What happens next?
26.	I am making no decision on the issue of whether or not the appellant is entitled to an award of DLA and, if so, which component(s) and at what rate. That is a matter for the fact-finding and judgment of the new tribunal.

27.	I must draw attention to section 12(8)(b) of the Social Security Act 1998. This states that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (my emphasis). The relevant decision in this case was (unfortunately) made as long ago as 13 May 2010.  Because of section 12(8)(b), the issues for the new tribunal are not the appellant’s care and/or mobility needs as at the date of the re-hearing later in 2012. This is a re-hearing of the original appeal. The tribunal will therefore have to focus on the appellant’s care and/or mobility needs as they were in May 2010. Those needs may well be little different today, in which case this should not present too many difficulties. 

28.	In addition, the Secretary of State should prepare a supplementary submission for the re-hearing at the new FTT. This submission should include all the documentary evidence used to make the previous awards of higher rate mobility and middle rate care (for the periods 19.09.2007 – 08.04.2008 and 09.04.2008 – 23.12.2008). It should also explain why the second of those awards only ran to 23.12.2008, given that the award letter produced by the appellant (and dated January 2008) shows that the original higher award was due to run until 17.03.2009. It is possible, of course, that the award was “downgraded” either on a renewal claim with immediate effect or following an application for a supersession.

Conclusion
29.		I therefore allow the appeal for the reasons set out above.  I set aside the decision of the tribunal (Tribunals Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for rehearing by a new tribunal subject to the directions listed above (section 12(2)(b)(i)).   

Signed on the original				Nicholas Wikeley
on 20 August 2012					Judge of the Upper Tribunal