SF CPIP 1693 2016
| Jurisdiction | UK Non-devolved |
| Judge | Judge N J Wikeley |
| Judgment Date | 28 October 2016 |
| Neutral Citation | 2016 UKUT 481 AAC |
| Subject Matter | Revisions, supersessions and reviews |
| Respondent | Secretary of State for Work and Pensions (PIP) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CPIP 1693 2016 |
| Appellant | SF |
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
The DECISION of the Upper Tribunal is to allow the appeal by the Appellant.
The decision of the Liverpool First-tier Tribunal dated 23 March 2016 under file reference SC068/15/04218 involves an error on a point of law. The First-tier Tribunal’s decision is set aside.
The Upper Tribunal is not in a position to re-make the decision under appeal. It therefore follows that the Appellant’s appeal against the Secretary of State’s decision dated 9 September 2015 is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.
This decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.
DIRECTIONS
The following directions apply to the hearing:
(1) The appeal should be considered at an oral hearing.
(2) The new First-tier Tribunal should not involve the tribunal judge or members who were previously involved in considering this appeal on 23 March 2016.
(3) The Appellant is reminded that the tribunal can only deal with the appeal, including his health and other circumstances, as at the date of the original decision by the Secretary of State under appeal (namely 9 September 2015).
(4) If the Appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the regional tribunal office in Liverpool within one month of the issue of this decision. Any such further evidence will have to relate to the circumstances as they were at the date of the decision of the Secretary of State under appeal (see Direction (3) above).
(5) The new tribunal should have before it a copy of the submission to the Upper Tribunal made by Mr W Spencer on behalf of the Secretary of State (pp.168a-170 of the Upper Tribunal bundle, along with its attachments).
(6) The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.
These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.
REASONS FOR DECISION
4. On 29 June 2015 the Department duly sent the Appellant a further letter headed “Looking at your Personal Independence Payment again.” Accompanying the letter was a new PIP questionnaire, which the Appellant returned. On 3 September 2015 he was seen by a different HCP. The Appellant’s presentation was certainly not as extreme as in July 2014. On this occasion the HCP noted “Does not look tired; average build; well kempt; wearing dirty clothes… coped well at interview; normal manner, not anxious, agitated or tense”.
5. On 9 September 2015 a decision maker decided that the Appellant scored zero daily living points, and his PIP award was withdrawn as from that date. The decision was not changed on mandatory reconsideration. Neither the decision letter nor the mandatory reconsideration decision referred to the previous decision. The DWP submission to the FTT referred in passing to the previous decision awarding PIP but did not in terms explain why that decision had been changed. In summary, the submission to the FTT read as though it was an explanation as to why a fresh claim for benefit had been refused.
6. The Appellant attended the FTT hearing on 23 March 2016 with his representative and gave evidence. The FTT dismissed his appeal.
The appeal to the Upper Tribunal
7. Mr Grant Bernard, the Appellant’s CAB representative, advances two grounds of appeal on behalf of the Appellant in his appeal to the Upper Tribunal. Ground 1 was that the FTT had failed adequately to address the specific activities put in issue before the tribunal. Ground 2 was that the FTT had failed to explain adequately, or at all, why the decision differed from the previous award. Upper Tribunal Judge Mitchell gave permission to appeal on both grounds.
8. Mr Wayne Spencer, the Secretary of State’s representative in these proceedings, supports the appeal but on what for convenience I describe as Ground 3, namely that the FTT had failed to identify the ground for supersession and the date from which it took effect.
The Upper Tribunal’s analysis Ground 3: the supersession point 9. I will deal with the grounds of appeal in reverse order and start with Ground 3, not least as both parties are agreed on that point. 10. The FTT summarised the chronology of events on the Appellant’s PIP claim accurately enough (statement of reasons at paragraph [2]), but without actually noting that the decision under appeal was a supersession decision. Indeed, the FTT’s statement of reasons gives the clear impression throughout that the FTT thought it was dealing with a fresh claim, as evidenced by its conclusion that “As no points were awarded [the Appellant] did not reach the threshold for entitlement to personal independence payment and therefore the appeal failed”. In short, the FTT got off on completely the wrong footing.
11. Mr Spencer for the Secretary of State acknowledges that the supersession decision in the present case “was evidently carried out on the initiative of the Secretary of State after a routine and predetermined re-examination of the claimant’s entitlement to benefit (a process referred to in the Department as ‘Planned Review’).” When referring to a “predetermined re-examination”, I am sure Mr Spencer means a review that was pre-determined in terms of its timing, rather than its outcome.
12. As Mr Spencer further observes, one or more of a number of possible grounds may be relied upon in making a supersession decision following a Planned Review. There are two obvious contenders as the basis for such a supersession decision in practice.
13. The first is where there has been “a relevant change of circumstances” within regulation 23(1)(a) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment Support Allowance (Decisions and Appeals) Regulations 2013 (SI 2013/381; “the D & A Regulations 2013”). In such a case the effective date of the supersession depends on the operation of Part 2 of Schedule 1 to the D & A Regulations 2013 – which Mr Spencer describes, not unfairly, as containing a “somewhat bewildering series of provisions”.
14. The second obvious situation is where the Secretary of State has received medical evidence from an HCP or other approved person (D & A Regulations 2013, regulation 26(1)(a)). By analogy with the position in the employment and support allowance and incapacity benefit schemes, this provision does not require a change of circumstances to be identified: JC v Secretary of State for Work and Pensions (ESA) [2015] UKUT 706 (AAC) at paragraph 28. A supersession on this basis takes effect in accordance with the normal principles as stipulated by section 10(5) of the Social Security Act 1998 (presumably from the date it was carried out), there being no special modifying provision in Schedule 1 to the D & A Regulations 2013.
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