Appeal No. UA-2025-000937-DLA
Between:
I.N.
Appellant
by
J.O.
Appointee
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Wikeley
Decided on consideration of the papers
Representation:
Appellant: Appointee in person
Respondent: Mr A. Martin, Decision Making and Appeals, DWP
On appeal from:
Tribunal: First-Tier Tribunal (Social Security and Child Support)
Digital Case No : 1698842636266124
Tribunal Venue: Havant
Hearing Date: 18 November 2024
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with this decision and the following directions.
DIRECTIONS
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 18 November 2024.
The Appellant is reminded that the tribunal can only deal with the appeal, including her health and other circumstances, as they were at the date of the original decision by the Secretary of State under appeal (namely 28 August 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 Tribunal hearing the remitted appeal will be dealing with the closed period from 2 May 2023 to 19 November 2024 (see paragraph 14 below).
The new First-tier Tribunal is not bound in any way either by the decision of the previous tribunal or by the new award. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal or the new award.
These Directions may be supplemented by later directions by a Tribunal Legal Officer, Tribunal Registrar or First-tier Tribunal Judge.
REASONS FOR DECISION
Introduction
This appeal is about a young girl who was aged 12 as at the date of claim. To protect her privacy, I refer to her as Imogen (not her real name). The appeal is brought on her behalf by her mother, who now acts as her Appointee.
The Appellant’s appeal to the Upper Tribunal succeeds and so there will need to be a completely fresh hearing of the original Disability Living Allowance (DLA) appeal before a new First-tier Tribunal (FTT).
The Upper Tribunal’s decision in summary and what happens next
I allow the Appellant’s appeal to the Upper Tribunal. 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.
The factual background
Imogen’s mother made a claim on her behalf for DLA. The Secretary of State’s decision-maker decided on 28 August 2023 that Imogen was not entitled to either the care or the mobility component of DLA with effect from the date of claim (2 May 2023). The FTT, on 18 November 2024, confirmed the Secretary of State’s decision and dismissed the appeal.
The grounds of appeal
The Appellant’s grounds of appeal were essentially that Imogen needs more care and attention that another child of her same age, not least due to her inability to assess danger, and that she had since been awarded DLA. I gave permission to appeal, commenting as follows:
I start with the observation that the fact that an award of DLA has been made for a subsequent period does not in itself mean that this First-tier Tribunal erred in law in its decision of 18 November 2024. The evidence may well have not been the same for the two periods. However, the FTT in this case may have failed to find sufficient facts or give adequate reasons for its decision. For example, the fact that [Imogen] did not need 1-2-1 support in school (SoR para 19) does not of itself mean that the conditions for DLA were not satisfied. The fact that there had apparently been only one incident where [Imogen] had gone off with other persons (SoR para 15) may still mean there is a risk that requires supervision. There appeared to be other evidence of incidents when [Imogen] or others had been put at risk of danger but it is not clear what the FTT made of such evidence (see e.g. FTT bundle pages 22, 26, 46-47 & 49-50). The grounds of appeal are therefore on balance arguable and so I consider there is sufficient here to warrant giving permission to appeal to the Upper Tribunal.
Mr A Martin, who is the Secretary of State’s representative in these proceedings, supports the appeal. He deals with his analysis of the points I raised in the grant of permission to appeal as follows (SOR = Statement of Reasons):
It is my submission that the FtT has erred in law in both its fact finding and duty to provide adequate reasons for its decision. The conclusion from the FtT on how they assessed the claimant’s functional abilities appears limited in its reasoning. It seems that what the FtT has provided when reading the SOR as a whole appears to be no more than a rehearsal of evidence and a conclusion without an adequate explanation. I submit that my views are generally aligned with those of the UT Judge and the appointee that the FtT has arguably erred materially in law for the reasons set out below.
The first instance in which UT Judge Wikeley provides an example of where the FtT may have failed to give adequate reasons for its decision, is when the FtT judge lists the fact that the claimant does not require one-to-one support at school as evidence that the claimant does not need attention and supervision for the significant portion of the day (para 19 of the SOR). I would observe that in this case the FtT appear to assume that the lack of one-to-one support at school is sufficient evidence to disallow a possible entitlement. However, it should be noted that despite not being in one-to-one support, it is possible that a claimant would still be able to satisfy the requirements set out within the Social Security Contributions and Benefits Act 1992 and the Social Security (Disability Living Allowance) Regulations 1991. It is noteworthy that at Page 6 of the FtT bundle, showing that the claimant was added to the SEND register at school. Whilst this does not constitute as one-to-one support, it does however provide evidence that the claimant requires extra support and supervision, and it is unclear within the SOR whether the FtT considered this point when making their decision.
The second instance where the findings of the FtT appear erroneous is at para 15 of SOR when the FtT states that “There was only one incident where [Claimant] went off with other persons.” It is important to consider that it is not required within the Social Security Contributions and Benefits Act 1992 or the Social Security (Disability Living Allowance) Regulations 1991 that there be repetitive incidents where the child has shown a lack of understanding of the dangers around them. The example such as the one provided by the appointee on page 46 of the FtT bundle, shows a clear lack of an understanding of danger. It is unclear why the FtT have deemed this one incident to not be enough evidence that the claimant does not require significant supervision, as they have failed to adequately explain their findings within the SOR.
The last point raised by UT Judge Wikeley is that there appears to be multiple instances where the FtT have failed to show that they have fully considered all the evidence provided by the claimant’s appointee within the SOR.
At page 22 of the FtT bundle the appointee states:
“Her sense of safety is concerning, and I don’t let her out because of it.”
At page 26 of the bundle the appointee goes on to add:
“If [claimant] is asked to get in a car she would, she would go with anyone. She does not understand the dangers around her”
Furthermore, at pages 46 and 47 of the bundle the claimant’s appointee provides evidence of a recent incident where the claimant put their younger sibling’s life in danger when they left an upstairs window open which led to their siblings climbing out onto the roof. The claimant’s appointee later states that ‘she has no sense of danger’. I would also note that at page 22 it is recorded that: “…she has been getting bullied because of how she acts, she was making (dog noises) in the changing room which broke out in a fight.”
Each of the above examples support the view that the claimant requires supervision in order not danger themselves or others. It is unclear within the statement of reasons whether this evidence was considered within the claimant’s appeal. If proper consideration was not given to this evidence, it is unclear how the FtT was able to reach the verdict possible that the claimant would be entitled to the lower care rate of DLA under Reg 72 (1)(b) of the Social Security Contributions and Benefits Act 1992, as each example of the claimant’s behaviour suggests that the claimant may require continual supervision throughout the day in order to avoid substantial danger to themselves or others.
In his written submission Mr Martin also deals with a number of further points raised by the Appointee in her grounds of appeal. He argues that these also point to an error of law on the part of the FTT.
For completeness, I should add that Imogen’s mother has no further observations.
Analysis: a summary
I agree with the detailed analysis of the Secretary of State’s representative in his written submission on the appeal, as summarised above.
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, set aside (or cancel) the Tribunal’s decision and remit (or send back) the original appeal for re-hearing to a new tribunal, which must make a fresh decision.
What happens next: the new First-tier Tribunal
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 Imogen is entitled to DLA for the period in issue (on which see further below) and, if so, which component(s) and at what rate(s). 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 Appellant’s circumstances as they were as long ago as in August 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 original decision by the Secretary of State, which was appealed to the FTT, was taken on 28 August 2023.
The new Tribunal will also note it is now dealing with the case as covering a closed period. This is because Imogen was subsequently awarded the middle rate of the DLA care component and the lower rate of the DLA mobility component for the period from 20 November 2024 to 31 January 2028. As a result, the FTT hearing the remitted appeal will therefore only be dealing with the closed period from 2 May 2023 (the date of the original DLA claim) to 19 November 2024 (the day before the start of the subsequent DLA award).
Conclusion
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.
Nicholas Wikeley
Judge of the Upper Tribunal
Authorised by the Judge for issue on 28 November 2025