MFJ v The Secretary of State for Work and Pensions

This case is remitted to the First-tier Tribunal (“FtT”) for reconsideration at an oral hearing.

It must either be heard by the same panel that took the decision appealed against, or be heard by an entirely differently constituted panel.

The FtT must conduct a rehearing of the issue raised by the appeal, namely the length of the award, and, subject to the FtT’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

The new FtT is not bound by the decision of the previous FtT. Depending on the findings of fact it makes, the new FtT may reach the same or a different conclusion to the previous FtT. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the FtT to which this case is remitted.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the FtT.

On 12 December 2022 and after a mandatory reconsideration the Secretary of State awarded the appellant the care component of Disability Living Allowance at the lowest rate, and no mobility component.. She appealed that decision to the FtT which upheld the Secretary of State’s decision in a decision dated 7 June 2024.

The permitted ground of appeal was that the FtT was required to consider the length of the award, and to make a decision with reasons, but it did not do so.

A second permitted ground is that the FtT may have made an error in how long the appellant spent travelling to and from school each day.

Permission was refused on all other grounds:

The Secretary of State supports the appeal. He points out that the appellant stated that she disagreed with the length of the award in the form SSC1, and goes on to give reasons. The point was also raised in submissions before the FtT. However there is no mention of the issue (and no decision on it) in the FtT’s decision or statement of reasons.

As to the significance of the length of the journey to school, the Secretary of State says the point the FtT was making was that it was a long journey, and even if they were in error as to how long it was, that was not material to their findings.

The appellant made no further submissions in response to the Secretary of State’s position.

As regards the error concerning the length of the school journey, I agree this is immaterial. The point the FtT was making was that the appellant could manage a substantial journey. That point is equally well made out by the correct journey length as it was by the mistaken journey length.

It is clear that the issue of the length of the award was raised before the FtT and has not been determined by them (or if it was, they have given no reasons for leaving the two year duration in place). As paragraph 7 of the statement of reasons identifies the issues before the tribunal, and does not mention the duration of the award, it seems to me most likely it was overlooked. That is an error of law and the decision must be set aside. However it does not cast doubt on the FtT’s decision on any other issue. I do not direct that the FtT must reconsider any other aspect of the appeal.

Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I therefore set the FtT decision aside and remit the case to be reconsidered by the FtT. As this is a case where the FtT’s error was an apparent failure to address a relevant issue at all, there is no reason why the reconsideration on that issue should not be undertaken by the original panel. There may be some benefits in doing so, equally assembling the original panel again may lead to undue delay in retaking the decision. Save that the decision must be retaken either by all of the original panel or by a wholly new panel I will leave this question to the judges of the FtT to decide as they case manage the appeal.