EK CE 3378 2011
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 07 March 2013 |
| Neutral Citation | 2013 UKUT 126 AAC |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Respondent | Secretary of State for Work & Pensions (ESA) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CE 3378 2011 |
| Appellant | EK |
Decision: The appeal is allowed. The decision of the First-tier Tribunal sitting at London North on 5 April 2011 under reference SC102/11/01059 involved the making of an error of law and is set aside. The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraphs 13-17 of the Reasons.
REASONS FOR DECISION
1. On 19 October 2010 the DWP decided that the claimant did not meet the test of limited capability for work. 6 points were awarded, based on continence difficulties. The claimant though had also claimed points-scoring difficulties under the descriptors then in force in relation to walking, sitting and standing, bending or kneeling, speech and consciousness. She also had some mental health difficulties.
2. The claimant, whose first language is Turkish and who speaks very little English, elected to have her appeal to the First-tier Tribunal (FtT) dealt with on the papers. The tribunal recognised that it nonetheless had a discretion whether to proceed in such a manner and no complaint is made in respect of its decision to do so. The FtT on 5 April 2011 upheld the DWP’s decision and on 21 November 2011 refused permission to appeal.
3. At the claimant’s request, I held an oral hearing of her application for permission to appeal on 14 June 2012 at which she was assisted by an interpreter. I gave permission to appeal. Written submissions have since been received both from the Secretary of State and from solicitors subsequently instructed by the claimant.
4. As part of her application to the Upper Tribunal, the claimant attached a copy of a letter notifying her of an increase in disability living allowance. From that it appeared that she had been awarded the middle rate of the care component “for help with personal care” and the lower rate of the mobility component, in each case from 9 March 2010 indefinitely. While one does not know the exact date of the DLA decision, it is evident that the DWP accepted that as at the date of the ESA decision, the claimant had a level of disability sufficient to qualify her for the rates of DLA awarded.
5. None of this was known to the FtT and absolutely no criticism attaches to it. It cannot be an error of law for the FtT to fail to address evidence when it was not before it. Further, while I accept that the FtT’s jurisdiction is inquisitorial, there was nothing here which ought to have triggered a duty on the FtT to investigate further, effectively on the off-chance that a person claiming ESA might have an existing award of DLA which neither party had seen fit to mention.
6. Whether there was an error of law on this aspect depends therefore on whether the Secretary of State was under a duty to disclose the information. Evidence in relation to one benefit may be material in connection with another benefit, as long as due caution is exercised, particularly in recognising the implications of the differing legislative frameworks: see for instance LD v Secretary of State for Work and Pensions [2009] UKUT 208 (AAC) and DR v Secretary of State for Work and Pensions [2010] UKUT 210 (AAC). On the face of it, the award of DLA suggested inter alia that, for instance if it was the day condition that was met (which I do not know), the claimant was so severely disabled physically or mentally that by day she required from another person...
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