Between:
EA
Appellant
by
HK
Appointee
- v -
Secretary of State for Work and Pensions
Respondent
Before: Upper Tribunal Judge Wikeley
Decided on consideration of the papers
Representation:
Appellant: Ms C. Andrews, Legal Rights Service, RNIB
Respondent: Ms C. Keates, Decision Making and Appeals, DWP
On appeal from:
Tribunal: First-Tier Tribunal (Social Security and Child Support)
Tribunal Case No: Not known
Digital Case No : 1687364853914131
Tribunal Venue: Salisbury
Hearing Date: 14 June 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 14 June 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 22 February 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 12 October 2022 to 18 June 2024 (see paragraph 13 below).
The new First-tier Tribunal is not bound in any way either by the decision of the previous tribunal or 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 3 at the date of claim. To protect her privacy, I refer to her as Emma (not her real name). The appeal is brought on her behalf by her mother, who 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
Emma’s mother made a claim for DLA for her daughter, who has nystagmus, on 12 October 2022. The Secretary of State’s decision-maker decided that Emma was not entitled to either component of DLA. The FTT on 14 June 2024 confirmed the Secretary of State’s decision.
The grounds of appeal
Emma’s mother was supported in her further appeal by the Royal National Institute for Blind People (RNIB). The Appellant’s grounds of appeal were as detailed on Form UT1. In summary, it was argued that the FTT had failed to take into account certain potentially key factors. I gave permission to appeal.
Ms C Keates, the Secretary of State’s representative in these proceedings, supports the appeal. She sums up her analysis 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 when dealing with the Care component of DLA, appears limited in their reasoning. It seems that what the FtT has provided when reading the SOR, appears to be no more than a rehearsal of evidence and a conclusion without an explanation.
Ms Keates gives the following example:
In dealing with the appointee’s representative’s first ground at page 13 where the following error of law is recorded: “Failure to take potentially key factors into account”. This I will address below. I note that the FtT stated at paragraph 18 of the SOR the following:
18.“The Somerset Vision Support Team letter dated 11/05/2022 reported that [claimant] was independently mobile in the nursery, and that she was confident in the nursery space after only a few sessions. She was observed to carry out a threading activity, demonstrated normal sensitivity to colour. She was able to recognise her hat, but it was observed that she needed longer to focus on objects. On the day of the visit [claimant] was not wearing her glasses. When she wears her glasses there is some improvement to her vision.”
As helpfully stated by the appointee’s representative there appears to be a misreading between the letter from The Somerset Vision Support Team and the SOR. The details of the letter can be found at pages 50 to 56, I would note that at page 51 the following is recorded:
“…is independently mobile in familiar areas of the nursery but may require an Environmental Audit and/or appropriate familiarisation of a setting. Curriculum access is possible particularly in the nursery because of the size, clarity and contrast of resources commonly used with this age group. However, some specialist equipment, adaptation of materials and support may be required. It is possible support and modification will increase as [claimant] progresses through school and resources become smaller and busier.”
As one can see, there appears to be disparities between the SOR at paragraph 18 (repeated above) and that of the report (repeated above) from the Advisory teacher at The Somerset Vision Support Team. Whilst it is correct that the claimant “…was independently mobile in the nursery, and that she was confident in the nursery space after only a few sessions…”. It is also clear upon one’s reading of the report (as noted above) that the claimant “…mayrequire an Environmental Audit and/or appropriate familiarisation of a setting…some specialist equipment, adaptation of materials and support may be required. It is possible support and modification will increase as [claimant] progresses through school and resources become smaller and busier.”. However, the FtT do not appear to engage with this evidence.
In view of the above, could it be that the amount of help that the claimant requires is greater than that recorded by the FtT in the SOR. Additionally, given the Advisory teacher has clearly made these recommendations, along with noting specialist equipment, adaptations, support and modifications will increase as it becomes busier, that the FtT have taken a somewhat narrow view of the evidence when concluding. As such, the reader is left in doubt as to what evidence the FtT relied upon and whether they accepted the evidence at pages 50 to 56, which may be indicative of the help that the claimant requires when mobilising around the Nursery. This I submit is an error in law.
Ms Keates goes on to give further examples. For completeness, I should add that Ms Andrews, the Appellant’s representative, has no further observations.
Analysis: a summary
I agree with the detailed analysis of the Secretary of State’s representative in her 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 Emma 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 claimant’s circumstances as they were as long ago as in February 2023, and not the position as at the date of the new hearing, which will obviously and regrettably be more than 2½ 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 22 February 2023.
The new Tribunal will also note it is now dealing with the case as covering a closed period. This is because Emma’s mother made a further claim for DLA for her daughter. This resulted in an award of the middle rate of the DLA care component and the lower rate of the DLA mobility component for the period from 19 June 2024 to 5 February 2031. As a result, the FTT hearing the remitted appeal will therefore be dealing with the closed period from 12 October 2022 to 18 June 2024.
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 19 June 2025