SW v Secretary of State for Work and Pensions (AA)

This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

The new First-tier Tribunal should not involve the tribunal judge, medical member or disability member previously involved in considering this appeal on 10 September 2024.

The Appellant is reminded that the tribunal can only deal with the appeal, including his health and other circumstances, as they were at the date of the decision by the Secretary of State under appeal (namely 2 November 2023).

If the Appellant has any further written evidence to put before the tribunal and, in particular, further medical evidence, this should be sent to the HMCTS regional tribunal office within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the original decision of the Secretary of State under appeal (see Direction (3) above).

The new First-tier Tribunal is not bound in any way either by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

The Appellant’s appeal to the Upper Tribunal succeeds and so there will need to be a completely fresh hearing of the original Attendance Allowance (AA) appeal before a new First-tier Tribunal (FTT).

I allow the Appellant’s appeal to the Upper Tribunal, which has the support of the Secretary of State’s representative. The decision of the First-tier Tribunal involves a legal error. For that reason, I set aside the Tribunal’s decision.

The Appellant’s case now needs to be reheard by a new and different First-tier Tribunal. I cannot predict what will be the outcome of the re-hearing. So, the new tribunal may reach the same, or a different, decision to that of the previous Tribunal. It all depends on the findings of fact that the new Tribunal makes.

In short, on 2 November 2023 the Secretary of State’s decision-maker decided to reject the Appellant’s AA claim. The Appellant appealed to the FTT. However, the FTT confirmed the DWP decision under appeal.

I gave the Appellant permission to appeal, observing as follows:

Mrs C Pettet, the Secretary of State’s representative in these proceedings, supports the appeal to the Upper Tribunal on both grounds.

I should add that the Appellant’s representative makes the following further observation on the appeal:

I agree with the analysis of the Secretary of State’s representative in her written submission supporting the appeal to the Upper Tribunal.

I am accordingly satisfied that the First-tier Tribunal erred in law for those reasons. I therefore allow the Appellant’s appeal to the Upper Tribunal and set aside (or cancel) the Tribunal’s decision.

I have considered the proposal by the Appellant’s representative that the Upper Tribunal should re-make the decision under appeal. However, I am not persuaded that the facts as found by the previous FTT necessarily support an award of AA. I therefore remit (or send back) the original appeal for re-hearing to a new tribunal, which must make a fresh decision.

There will therefore need to be a fresh hearing of the appeal before a new First-tier Tribunal. Although I am setting aside the previous Tribunal’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the Appellant is entitled to AA and, if so, at what rate. That is a matter for the good judgement of the new Tribunal. That new Tribunal must review all the relevant evidence and make its own findings of fact.

In doing so, however, unfortunately the new Tribunal will have to focus on the claimant’s circumstances as they were in November 2023, and not the position as at the date of the new hearing, which will obviously be more than two years later. This is because the new Tribunal must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (emphasis added; see section 12(8)(b) of the Social Security Act 1998). The decision by the Secretary of State, which was appealed to the FTT, was taken on 2 November 2023.

I therefore conclude that the decision of the First-tier Tribunal involves an error of law. I allow the appeal and set aside the decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The case must be remitted for re-hearing by a new tribunal subject to the directions set out above (section 12(2)(b)(i)). My decision is also as set out above.