THE UPPER TRIBUNAL	Appeal No.  CDLA 1962 2009
ADMINISTRATIVE APPEALS CHAMBER

RM v SSWP

DECISION

The appeal is allowed. For the reasons below, the decision of the tribunal is set aside. With the consent of both parties, I replace the decision of the tribunal with the following decision:

	Appeal allowed. The appellant is entitled to the lower rate of the mobility 	component and lowest rate of the care component (help with preparing a 	cooked main meal) from and including 23 02 2009 to 9 06 2009.

REASONS FOR DECISION

1	The claimant and appellant is appealing against a decision of the Stockport tribunal on 1 04 2009 under reference 944 09 00406.  

2	The parties have agreed that I set aside the decision of the tribunal, and replace it with the decision set out above, for the reasons given when I granted permission to appeal. In that determination I summarised the relevant facts as follows:

	“The renewal application asked for help outdoors and indoors because of the appellant’s epilepsy. In her original application form in 2002 the appellant stated that sometimes she has warnings of fits and sometimes she does not. It was accepted for the Secretary of State and allowance awarded. She repeated the same information in her claim form in 2005. It was not accepted for the Secretary of State on that occasion, but a tribunal on 26 05 2006 renewed the award for three years. The same pattern was repeated when she reclaimed in 2008, save that on this occasion the tribunal did not renew the allowance.

	The evidence about the appellant’s epilepsy that was before the tribunal included this history. There is a report from the general practitioner on 31 10 2008 that confirms the appellant’s fits but also that she had had no fits for the last month and that they were “usually light/flashing light induced”. 

	The appellant wrote to the tribunal ahead of its hearing stating that “I would like to come to my appeal but because of my fits I’m scared because it’s lights that trigger my fits off”. She makes it clear that she is aware of the advantages of attending a tribunal but states that “I’m sorry I can’t do this.” The appellant was not represented and there is no indication that she was aware that she could ask for a domiciliary visit.”

3	I commented on the tribunal decision as follows:

	“The tribunal heard the case at a paper hearing. In its statement of reasons the tribunal commented: “She requested a paper hearing of this appeal and so the tribunal did not have the benefit or oral evidence from her”. It then goes on to recite the evidence about the appellant’s fits being light-induced without mentioning that this is precisely why she felt unable to attend the tribunal. 

	In my view this is precisely the sort of case where a tribunal’s decision to hear the case on paper creates a danger of prejudging the outcome decision. The appellant clearly wanted to attend a hearing, and clearly knew it was to her advantage to do so, but felt unable to do so for precisely the reason she was claiming the allowance. There is no indication that the tribunal considered the reasons why the appellant stated that she could not attend the hearing and therefore did not. It did not consider whether it should adjourn for a domiciliary visit or for further evidence. But there was the clearest evidence from both the appellant and from her general practitioner of the reasons why she could not attend a tribunal where there was a risk that the lights would set off a fit. So do crowds of people. Nor, in common experience, could a tribunal hearing be held in the normal way in conditions that involved no such risks. So the appellant’s approach to not attending the tribunal was entirely consistent with her claim for the allowance. In my view this is one of those rare cases where the inquisitorial function of the tribunal required that it consider whether it was being fair in taking no steps to deal with this justified fear of the appellant about attempting to attend the tribunal hearing. “

4	I therefore suggested that the tribunal decision be set aside. Taking into account the difficulties of organising another hearing and the evidence on file before me I suggested an award of the lower rate of the mobility component and lowest rate of the care component. This included evidence not before the tribunal. I have since been told that the appellant was awarded disability living allowance at that level from 10 06 2009. I have therefore limited this decision. 
David Williams
Judge of the Upper Tribunal
30 11 2009

[Signed on the original on the date stated]