NNA v Secretary of State for Work and Pensions

The decision of the First-tier Tribunal sitting in Gateshead on 7 August 2024 under reference SC295/23/00146 is set aside and I remit this matter to a differently constituted panel in the Social Entitlement Chamber of the First-tier Tribunal for reconsideration.

This matter shall be referred to a District Tribunal Judge for listing and case management directions. These directions shall include a requirement that the Secretary of State provide a fresh submission clarifying whether the decision under appeal constitutes a supersession of an award or a decision on a renewal claim. In particular, the Secretary of State should confirm whether a further superseding decision was made to allow the award to continue until 6 June 2023 and, if not, provide evidence explaining the gap between the natural end of the award and the decision on the award review.

Both the appellant and the respondent agree that the decision of the tribunal was made in error of law. Both parties have indicated that they are content for this matter to be dealt with without reasons and on the papers.

Having considered the papers and the submissions, I am satisfied that I can make a decision on this appeal without directly hearing further from the parties. It is fair and just to do so. The respective positions are clear. I am only deciding whether there has been an error of law in the first tribunal’s decision. As a result, and with the overriding objective in mind, I do not see any benefit to either party in arranging a further hearing before this Upper Tribunal.

To assist the First-tier Tribunal (‘FTT’) on remittal, I produce below some of the concerns ventilated by Upper Tribunal Judge Wright in granting permission in this Personal Independence Payment (‘PIP’) appeal:

“The first potential error of law concerns the arguable failure of the FTT to identify the correct basis of the decision which was under appeal to it. The FTT’s statement of reason starts by referring to the decision of the Secretary of State being dated 12 August 2024. That cannot be correct as the appeal was heard and decided five days before this date. The correct date of the decision which was under appeal is seemingly 6 June 2023, and the FTT picks up on this later in its reasons (and in its Decision Notice). This decision is described by the FTT, and in the Secretary of State’s appeal response to the FTT, as being a decision superseding an earlier decision. However, the evidence in the FTT bundle is arguably at best unclear on this.

The decision being superseded is said by the FTT at paragraph 4 of its reasons to be a decision that awarded Ms A the standard rate of the daily living component and the enhanced rate of the mobility component of PIP from 16 October 2019 to 7 August 2022. That decision appears on page 109 of the FTT bundle and was made on 14 November 2019. Importantly, however, if that awarding decision ended on 7 August 2022, there was no continuing awarding decision to be superseded with effect from 6 June 2023. The FTT does not address this arguably obvious conflict. It has therefore, at least arguably, erred in law in failing to satisfy itself of the correct basis of the powers it had to exercise in deciding the appeal.

It appears that the above 16 October 2019 awarding decision was changed (presumably by a supersession decision) on 9 January 2021 (see page 115 of the FTT bundle) to extend the PIP award, but the award was only extended until 7 May 2023. The FTT does not seem to have grappled with this later decision at all. But even had it done so, it would not seem to assist with the decision of 6 June 2023 being a supersession decision because the (extended) awarding decision had ended by 7 May 2023. If this is correct then the FTT still arguably erred in law in either (i) proceeding on a wrong basis as to the nature of the decision under appeal to, or (ii) in failing to enquire further of the Secretary of State so as to satisfy itself that the decision under appeal was a supersession decision.

Assuming that the decision under appeal was a supersession decision, the second arguable error of law is that the FTT may have acted unfairly in taking way the points which had been awarded under the 6 June 2023 decision and which the parties may not have thought were in issue on the appeal: see paragraph [11] of EG –v SSWP (PIP) [2015] UKUT 275 (AAC) and the case law cited therein.

The third arguable error of law proceeds again on the basis that the decision under appeal was a decision superseding the substantive entitlement decision of 14 November 2019. If it was, it may be arguable that the FTT failed to show in its reasoning that it had considered all of the evidence before it, including the evidence that had led to the superseded award, and thus has not sufficiently explained why the old award was no longer merited for all of the period for which it had been made: see KB v SSWP (PIP) [2016] UKUT 537 (AAC) at paragraphs [27]-[28]. (This argument highlights, however, the difficulty in proceeding on the basis that the decision under appeal had superseded an awarding decision when the end date of that awarding decision was not known.)

The fourth arguable error of law is that the FTT has arguably failed to give adequate reasons to explain why on the evidence before it the FTT decided the appeal in the way it did (including removing the points awarded by the Secretary of State in the 6 June 2023 decision)….”

The Secretary of State supports this appeal. In sum, the Secretary of State submits:

“The FtT have erred in law by failing to consider the correct basis of the decision under appeal. They have failed in their inquisitorial duty to enquire further into the gaps between the end of the award and the decision under appeal. …

There would be no ground for a decision maker to supersede the previous award on 06/06/2023 as it had naturally come to end by the time that the decision maker made the decision. The FtT … should have requested that the Secretary of State provided evidence to show whether a further superseding decision was made to allow for the award to continue until 06/06/2023 and if not for them to also provide evidence why there was a gap between the natural end of the award and the decision on the award review.

…

… the FtT must make their reasoning clear, so all parties can understand the issues that the FtT dealt with. The absence of explanation on this issue suggests that the FtT have failed to consider this. This amounts to an error of law, it is unclear whether the FtT have misdirected themselves or failed to consider this evidence when treating this decision as a supersession.

As noted by UT Judge Wright, the second and third grounds are dependent on there being a superseding decision made on 06/06/2023. As I have submitted in the paragraphs above a superseding decision was not made in this case, therefore I will not be providing a response to these grounds.

…

I respectfully submitted that the FtT have erred in law by failing to provide sufficient reasoning for its decisions across several areas of the appellant’s claim. …

Across all areas, the FtT reasoning lacked clarity and failed to engage properly with the evidence presented...”

I adopt the reasoning articulated by Judge Wright in his summation of the first and fourth potential errors of law, together with the submissions advanced on behalf of the Secretary of State in that regard. I also agree with the appellant’s representative that the inadequacy of reasons makes it difficult for an appellant to ascertain whether the FTT applied the correct legal tests in assessing the evidence, making its findings of fact, and reaching its decision.

These omissions amount to an error of law and justify the matter being remitted. It is unnecessary to go further. In these circumstances, I am bound to allow the appeal. The FTT failed to consider the correct basis of the decision under appeal. The confusion regarding the date of the supersession renders the tribunal’s outcome irretrievably flawed. The tribunal did not adequately discharge its inquisitorial duty to investigate the gaps between the end of the award and the decision under appeal or provide adequate reasons to explain why on the evidence before it the FTT decided the appeal in the way it did.

Accordingly, I direct that the matter be remitted to a differently constituted tribunal for a full rehearing.

For the avoidance of doubt, the fact that the appeal has succeeded at this stage should not be regarded as any indication of the outcome before the First-tier Tribunal in due course.