JA 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 supplemented by further directions from a judge of the First-tier Tribunal.

The claimant appealed against the decision of the First-tier Tribunal. The Secretary of State’s representative has supported the appeal, saying that there were errors of law in the Tribunal’s decision and inviting the Upper Tribunal to send the case back to the First-tier Tribunal for rehearing. The claimant has agreed. Neither party has asked for an oral hearing of the appeal, and both have consented to a decision without reasons.

Given that agreement, I am satisfied that I can decide this case fairly on the papers and all I need do is to say briefly 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.

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

I have set the Tribunal’s decision aside, because I agree that the Tribunal has not adequately explained its decision and did not show that it had considered all the written evidence. I agree with the submission from the Secretary of State’s representative: “The Tribunal did state in paragraph 22 of the SOR [i.e. Statement of Reasons] that they “considered the entirety of the submission bundle from page 1 to page G1”. However, the SOR seems to reference only the [Healthcare Professional’s] report, and the claimant’s oral evidence. There are no references to the claimant’s medical records, or evidence from GP and [Community Mental Health Team], suggesting they have rejected this evidence. Either way, it is not clear to the reader of the SOR what consideration has been given to the further evidence.”

The Statement of Reasons engages only with the claimant’s oral evidence (which it found unpersuasive) and the report from the HCP. But the Tribunal was required to assess the claimant's credibility in the light of all the evidence, including his medical records and evidence from, for example, his CMHT care co-ordinator (Addition E of the First-tier Bundle). I accept that the Tribunal failed to show, in its reasons, that it had done so.

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 claimant, 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.