The Upper Tribunal | UT Case Number: UA-2024-001481-DLA |
Summary: supported appeal – decision set aside with consent of Secretary of State.
Before
UPPER TRIBUNAL JUDGE JACOBS
Between
EB (by her appointee) | Appellant |
and | |
Secretary of State for Work and Pensions | Respondent |
Decided on 24 April 2025 without a hearing
Representatives
Claimant: DMA, Leeds
Secretary of State: Legal Rights Service (RNIB)
Decision of Upper Tribunal
On appeal from the First-tier Tribunal (Social Entitlement Chamber)
Reference: | SC141/23/00228 |
Decision date: | 27 November 2023 |
Hearing: | King’s Lynn by video |
As the decision of the First-tier Tribunal involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.
DIRECTIONS:
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).
In particular, the tribunal must investigate and decide the claimant’s entitlement to a disability living allowance on the claim made on her behalf on 28 October 2022.
In doing so, the tribunal must not take account of circumstances that were not obtaining at the time of the decision on the claim (made on 14 March 2023): see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.
As the claimant was born on 2 July 2022, the tribunal may not make an award unless one of the age qualification criteria is satisfied.
The Secretary of State’s representative had informed the Upper Tribunal that a new claim for a disability living allowance was made for the claimant on 4 October 2024. I do not know whether the Secretary of State has decided that claim. If it has been decided, the First-tier Tribunal’s jurisdiction will end on the day before the date when the decision took effect.
I note that the claimant’s representative has invited the Secretary of State to consider making an award and thereby avoiding a rehearing.
Reasons for Decision
The claimant appealed against the decision of the First-tier Tribunal with the permission of Upper Tribunal Judge Butler. The Secretary of State’s representative has supported the appeal. She conveniently summarised the grounds on which the judge gave permission:
UT Judge Butler has granted the claimant permission to appeal (PTA) at p. 20 to 23 of the UT appeal bundle on the grounds detailed at paragraphs 5 – 9. The first ground, outlined at paragraphs 5 – 6, concerns the fact that the FtT may have erred in law by failing to address both sub-paragraphs of section 72(1A)(b)(i) and (ii) of the Social Security Contributions and Benefits Act 1992, and in doing so, may have failed to properly apply BM v SSWP (DLA) [2015] AACR 29. The second ground, detailed at paragraphs 7 - 8, concerns the fact that the FtT may have erred in law by failing to address the arguments put forward by the appointee’s representative. The final ground, outlined at paragraphs 9 – 10, concerns the fact that the FtT may have erred in law by failing to make adequate findings of fact, and - or alternatively - may have failed to properly explain its reasoning in relation to its decision.
The claimant by her representative has agreed. Given that agreement, all I need do is to say 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.
For the benefit of the claimant’s appointee, 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.
Authorised for issue | Edward Jacobs |