DB CDLA 1121 2015
| Jurisdiction | UK Non-devolved |
| Judge | Judge P Gray |
| Judgment Date | 25 April 2016 |
| Neutral Citation | 2016 UKUT 205 AAC |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Respondent | Secretary of State for Work and Pensions (DLA) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CDLA 1121 2015 |
| Appellant | DB |
Before: Upper Tribunal Judge Paula Gray
DECISION
This appeal by the claimant is dismissed.
Permission to appeal having been given by me on 29 April 2015 in accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and rule 40(3) of the Tribunals Procedure (Upper Tribunal) Rules 2008 I do not set aside the decision of the First-tier Tribunal sitting at Fox Court and made on 28 November 2014 under reference SC 242/14/04704. It does not contain a material error of law, and it stands.
REASONS
Background
- This appeal concerned only the appellant’s entitlement to the mobility component of DLA. There was no dispute about entitlement to the care component
- I granted permission to appeal saying
3 In this case the FTT was dealing with a decision refusing to supersede an award of DLA to the appellant who had applied on 12 February 2014 for the higher rate of the mobility component based upon a change of circumstances. The FTT was of the view that, due to his current age the applicant was required to show that his entitlement to that component would have existed in 2004 prior to him turning 65. They saw this as the legal issue and their function as being to analyse the evidence with a view to establishing whether or not that was the case. They dismissed the appeal on the basis that it was unlikely that the appellant was virtually unable to walk at that stage.
4 The appellant had chosen not to attend an oral hearing, citing his being “housebound” through disability as the reason. Contrary to the grounds of appeal the FTT did not explicitly accept that this was so; their comment, which is quoted rather out of context in the grounds of appeal, was to the effect that the applicant said he was housebound and therefore could not attend, and was not an assertion that this was in fact so.
5 Nonetheless it seems to me that given what the FTT perceived as the critical issue in the case, and their view that contemporaneous documentary evidence would be more valuable than the oral evidence of the appellant as to his circumstances back in 2004, and given the limited amount of such evidence in the tribunal bundle, there is an argument that the tribunal should have considered adjourning for further oral evidence. I grant permission to appeal on that basis, but I do not shut down the argument put forward as to whether the FTT should have considered a domiciliary hearing to facilitate the appellant’s participation in the proceedings under rule 2 Tribunal Procedure (First Tier Tribunal) (SEC) Rules 2008 ( the FTT procedural rules).
6 The Secretary of State shall make submissions as to the points raised and in respect of the appropriateness of a domiciliary hearing.
- Generally
- With regard to any implications as to a hearing generally being expected to be held in public (rule 30 (1), the FTT procedural rules)
- In this case and
- Whether, in relation to the exercise of the overriding objective, the FTT is able to consider public resources, either on a freestanding basis or in conjunction with the concept of proportionality
- Given that the appellant applied with the assistance of his then representative for a supersession of his previous award in 2013, and by decision made on a 7 October 2013 his award was increased to include highest rate care from 8 July 2013 but not the higher rate of the mobility component, and that decision does not seem to have been appealed, is there any principle of law that prevents the appellant effectively re-arguing the facts upon which that decision was based in the application for supersession which underlies this appeal.
Background matters
- The appellant (or claimant) was born on 28/6/1939, becoming 65 on that date in 2004
- His initial DLA award was made from the date of claim 31/12/1998. It was for middle rate care and lower rate mobility. The lower rate of the mobility component was in payment because, in addition to the physical problems that have been the focus of this appeal the appellant has a psychiatric condition which would seem to have been the basis of the original awards made.
The first supersession application
- The claimant contended for an increase in his award to include the higher rate of the mobility component in an application for supersession made on 24/7/2006. In the application form he dealt with his ability to walk outdoors and explained his walking difficulties due to joint pain. He said that he could at that time walk 60 metres or yards, that he would take about 10 minutes to accomplish that, and that the difficulties existed seven days a week.
- Documents in the bundle before me (page 211, a screen print) show that the Secretary of State’s decision maker refused the application; that decision was unsuccessfully appealed to the FTT, the appeal being concluded on 21/2/2007.
The second supersession application
- An application to supersede that decision was made on 8/7/2013. This succeeded in part, resulting on 7/10/2013 in an increase in his middle rate care award to an award at the highest rate from the date of the application; however his lower rate mobility award was not increased.
This, the third supersession application
- The claimant made a yet further supersession application on 12/2/2014. The decision maker refused to supersede on 8/7/2014, and he appealed.
- The decision maker and the FTT considered the issue to be whether he had established that his walking problems existed prior to his attaining the age of 65 at a level consistent with an award of the higher rate of the mobility component; essentially whether or not he was in fact virtually unable to walk prior to 28/6/2004.
- The FTT found that he had not shown that to be the case and his appeal was dismissed.
The case before me
The respective positions of the parties
The appellant
- The arguments made in the application for permission to appeal by Mr Malik of the Coventry Law centre, who acts for the appellant, stand as the appellant's final position. There has been no comment on the matters set out in the Secretary of State's submission, or on the matters that I raised in my grant of permission.
- The omission of the FTT to consider whether the appellant's GP records should be obtained was said to be an error of law, given the inquisitorial role of the tribunal, and a material error since such records could have provided contemporaneous evidence of the appellant's condition on 28 June 2004 when the appellant became 65, thus helping the tribunal to decide whether there had been a relevant change of circumstance since the awarding decision. It was argued that the appellant, who was then without representation, did not appreciate that medical records could advance his case.
- The absence of an enquiry as to the appropriateness of a domiciliary hearing is said to be an error of law. The assumption the FTT made that the available contemporary documentary evidence was likely to be more accurate than the appellant’s oral evidence on the point was misplaced; the appellant has instructed his representatives that he would be able to explain what his mobility problems were in June 2004 and how they had changed since 1999.
- It was wrong to rely on the inference that he was not housebound immediately prior 2007 to answer the question as to whether he was virtually unable to walk in 2004, since that test did not require a person to be housebound.
The Secretary of State
- The Secretary of State does not support the appeal. In relation to whether the tribunal could consider the matter at all, other than indicating that the 13 month time limit for appealing the previous (2013) decision had concluded, no observations are made
- On the issue of whether or not the tribunal should have adjourned it is argued that the content of the statement generally shows that the provisions of rule 27 of the tribunal procedural rules were properly considered. The appellant indicated that he did not wish to attend, and the tribunal were entitled to respect that view if they felt that they were able to decide the matter fairly without an oral hearing. Given their view that oral evidence would not shed a light on the matter they had to consider, and they were entitled to take that view and continue as they did.
- As to the domiciliary visit, the previous points are once again prayed in aid, and in addition, in response to my request for observations as to the appropriateness of domiciliary visits in general, observations that I made in the case of KO-v- Secretary of State For Work and Pensions (ESA) UKUT [2013] 544 (AAC) are set out. Adopting my reasoning there it is submitted...
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