PM CIS 392 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 14 October 2014 |
| Neutral Citation | 2014 UKUT 474 AAC |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Respondent | Secretary of State for Work and Pensions (IS) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIS 392 2014 |
| Appellant | PM |
IN THE UPPER TRIBUNAL Case No. CIS/392/2014
ADMINISTRATIVE APPEALS CHAMBER
BEFOR UPPER TRIBUNAL JUDGE WARD
Decision: The decision is allowed. The decision of the First‑tier Tribunal sitting at Durham on 25 September 2013 under Ref: SC225/12/0013 involved the making of an error of law and is set aside. Acting under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 I remake the decision in the following terms:-
The claimant’s appeal against the decision dated 4 March 2013 is allowed. At the time of the claim for income support made on 17 December 2012 and that of the decision refusing it the appellant had a right to reside as the family member of a worker. She was accordingly, not a “person from abroad” so as to have an applicable amount of £Nil.
REASONS FOR DECISION
1. The appellant, a Polish national, came to the UK initially on 1 September 2010 to join her father, also a Polish national. She became estranged from him and was taken into care until she turned 18 on 11 July 2012. She is single with no dependants and claimed income support on the basis of being in full-time non-advanced education and estranged (see Income Support (General) Regulations 1987, sch 1B, para 15A).. By a decision dated 4 March 2013 her claim was rejected on the grounds that she lacked the right to reside.
2. At the First‑tier Tribunal hearing the appellant’s representative, from Durham County Council Welfare Rights Team attended, but the appellant did not. The representative informed the tribunal that the appellant was distressed and had asked her to put her case. In the course of doing so the representative gave details of the father’s last known address and place of work in the UK. (It was subsequently said that the information had earlier been given also by the appellant’s support worker to the office in Wick, but that was not evidence that was before the tribunal.) The tribunal dealt with what the representative had said by stating that:
“Only statements of fact made by a representative as to matters within their personal knowledge are evidence. It is the appellant who must give evidence as to the facts in issue, not the representative. If the decision appealed against was to be effectively challenged it was incumbent on [the appellant] and those advising her to recognise the need to provide evidence.”
The tribunal went on to hold that she was not the family member of a worker and so her appeal failed.
3. Upper Tribunal Judge White gave permission to appeal, observing that:
“The submission to the tribunal recognises the need to obtain information about the arrangements under which the appellant ceased to be in the care of the local authority … and hint at the need for enquiry into the father’s work history … but the decision seems to have been made without the decision‑maker having this information, or even having sought to obtain it. Those are matters properly relevant to the inquisitorial function of the tribunal (even where the appellant has a representative).”
4. The Secretary of State accepts that
“The decision of the tribunal should be set aside on the ground that the issue of rights derived from the appellant’s father was not dealt with adequately or fairly. The approach taken by the tribunal was not consistent with that established by Kerr v Department for Social Development (NI) [2004] UKHL 23. Once judicial proceedings had begun (when the appeal was made) the tribunal could have directed the Secretary of State to provide information about [the appellant’s] father which could then be lawfully obtained and provided without the consent of the third party (see section 35 of the Data Protection Act 1998).”
5. I agree both with Judge White’s remarks about the inquisitorial function of the tribunal and the Secretary of State’s that fairness required the use of the tribunal’s powers to obtain the missing information. The circumstances of a young foreign...
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