JM 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).

In particular, the tribunal must investigate and decide the claimant’s entitlement to a personal independence payment on her claim that was made on 23 June 2022 and refused by the Secretary of State on 6 December 2022.

In doing so, the tribunal must not take account of circumstances that were not obtaining at that time: 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.

An apology

I must begin by apologising for how long it has taken for the Upper Tribunal to make this decision. Permission was given in December 2024. The Secretary of State responded at the end of January and the claimant’s representative replied in mid-February. There was then an unexplained delay before the case management system was updated in mid-April. At that point, the alert system failed to operate as it should have. The case was eventually referred to me this morning.

History

The claimant appealed against the decision of the First-tier Tribunal. The Secretary of State’s representative has supported the appeal, saying that there was an error of law in the tribunal’s decision and inviting the Upper Tribunal to send the case back to the tribunal for rehearing. The claimant 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.

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

I have set the tribunal’s decision aside on the basis of the errors of law identified in the submission of the Secretary of State’s representative. The claimant has been sent a copy of that, so it will be of no benefit to repeat those errors here. Suffice it to say that the tribunal failed to make findings or provide explanations on issues that arose on the evidence before or the submissions made to the First-tier Tribunal.

In the reply to the appeal, the claimant’s representative has said that one of the grounds in the application for permission to appeal ‘appears overlooked so far.’ I do not need to deal with this possible error, as it 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.