EB v Secretary of State for Work and Pensions

The tribunal must undertake a complete reconsideration 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.

The reconsideration must be undertaken in accordance with KK v Secretary of State for Work and Pensions [2015] UKUT 417 (AAC).

These Directions may be varied or supplemented by Directions issued by a judge of the First-tier Tribunal.

The appellant has appealed the decision of the First-tier Tribunal (“the FTT”). The Secretary of State’s representative has supported the appeal, saying that there was an error of law in the tribunal’s decision and inviting the Upper Tribunal to send the case back to the tribunal for rehearing. The appellant agrees with that approach. Both parties have consented to a decision without reasons and neither party has asked for an oral hearing.

Given that agreement, all I need do is to say why I have set aside the tribunal’s decision and explain what is meant by a rehearing. It is not necessary to set out the history of the case or to analyse the evidence and arguments in detail, and I am satisfied that this appeal can be determined fairly on the papers.

Why I have set the First-tier Tribunal’s decision aside

In giving permission to appeal, Upper Tribunal Judge Citron identified that the FTT had arguably erred in law because:

In responding to the appeal, the Secretary of State’s representative has agreed that the FTT’s approach was flawed in these respects. The FTT failed to demonstrate that it had applied an objective standard when looking at the adequacy of the standard or frequency of washing maintained by the claimant, and to show what it had made of evidence such as that from the GP, that she had not bathed for six weeks. With regards to dressing, the respondent noted that that the FTT did not examine whether the appellant needed prompting and assistance to dress and undress. It was silent on the evidence that indicated that the claimant, due to her sensory needs, would remain in the same clothes for days at a time. She had said in her PIP2 form: “…It has got to a point where due to inability to choose clothes, I end up wearing the same clothes for days. Usually wearing pyjamas unless I have to go out, anxiety and depression causing me to have no motivation. These are daily problems.” The FTT also failed to show how it had assessed the relevance of evidence before it of mental health issues (which in her PIP2 form, the appellant stated affected her ability to self-care, for example).

I accept these criticisms of the FTT’s approach, both with regards to the need for an objective test of adequacy and in relation to demonstrating that it had taken account of the range of evidence before it, as part of reaching its conclusions on the nature and impact of the appellant’s limitations.

I do not need to deal with any other error in point of law that the tribunal may have made. Any that were made will be subsumed by the rehearing.

What will happen at the rehearing

For the benefit of the appellant, this is the effect of the decision in KK to which I have referred in my directions.

The tribunal must follow the directions I have given.

The rehearing will not be limited to the grounds on which I have set aside the tribunal’s decision. The tribunal will consider all aspects of the case, both fact and law, entirely afresh.

Nor will the tribunal be limited to the evidence and submissions that were before the tribunal at the previous hearing. It will decide the case on the basis of the relevant evidence and submissions made at the rehearing.

The tribunal must come to its own conclusions on the issues of both fact and law that it considers. Nothing in my decision or in my reasons for it is an indication of the likely outcome of the rehearing. Nor will the tribunal be bound by any conclusions of fact or law reached by the tribunal in the decision that I have set aside.