KK v Secretary of State for Work and Pensions (DLA) [2012] UKUT 356 (AAC) (26 September 2012)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 25 November 2011 at Aberystwyth under reference 943/10/00141) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.

DIRECTIONS:

A. The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.

B. In particular, the tribunal must investigate and decide the claimant’s entitlement to a disability living allowance on his claim that was treated as made on 4 January 2010.

C. In doing so, the tribunal must not take account of circumstances that were not obtaining during the period from the date of claim to the date of the decision under appeal (17 February 2010): see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.

Reasons for Decision

A. History and background

1. Mr K made a claim for disability living allowance, which was treated as made on 4 January 2010. The Secretary of State refused the claim on 17 February 2010. The decision-maker had available the claimant’s claim pack and the report of an interview and examination on 23 June 2009 for the purposes of incapacity benefit. In the claim pack, Mr K reported problems relevant to:

· the mobility component at the higher rate – pain, slowness, loss of sensation, and lack of coordination;

· the mobility component at the lower rate – panic attacks and his legs gave way;

· attention by day and at night;

· the cooked main meal test – problems with bending, and with lifting and carrying pans.

The doctor who examined Mr K to assess his capacity for work identified no problems relevant to that issue. His findings on examination were essentially normal. He reported that Mr K declined to undertake certain manoeuvres and had reduced straight leg raising and limited reach into the small of his back with his right hand.

2. Mr K exercised his right of appeal to the First-tier Tribunal, saying that the medical report was in dispute. When the case before the tribunal was ready for decision, it had available considerable medical evidence from the GP’s records and a report by an examining medical practitioner. The latter had been ordered by the tribunal at a previous hearing. The doctor who visited Mr K found limitations in his back, shoulders, upper arms and lower limbs. The doctor gave the opinion that his mobility was limited to about 67 metres (the distance to the local harbour) and that he was affected by panic at night, but that there were no care needs, except for problems reaching an oven.

3. Mr K attended the hearing on his own. The First-tier Tribunal’s file shows that a firm of solicitors had presented a bundle of evidence on his behalf and had given him some initial advice, but would not be able to help him further. The presiding judge made the following note early in her record of proceedings:

App – not wanting help at home. No claim re that. Maintaining independence. Don’t want invasion of privacy. My diffic & claim is re getting about.

The tribunal dismissed the appeal. In her reasons, the judge explained:

As indicated by the appellant at the hearing, he did not wish to consider eligibility for the care component of the benefit.

4. Mr K applied for permission to appeal with the help of his local CAB. Upper Tribunal Judge Turnbull gave permission and identified two issues:

· could Mr K reasonable require attention if he did not want to receive it?

· in any event, should the tribunal have considered the cooked main meal test, which does not depend on a need for attention or supervision?

The Secretary of State has supported the appeal and the case has been referred to me in Judge Turnbull’s absence.

B. Analysis

5. This is a fascinating case. It depends on the combined effect of:

· the conditions of entitlement to the care component of disability living allowance;

· the scope of an appeal;

· the tribunal’s duties, especially in the exercise of the overriding objective.

I take those in turn.

The conditions of entitlement to the care component

6. Section 72 of the Social Security Contributions and Benefits Act 1992 provides for the care component:

(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which–

(a) he is so severely disabled physically or mentally that-

(i) he requires in connection with his bodily functions attention from another person for a significant portion of the day (whether during a single period or a number of separate periods); or

(ii) he cannot prepare a cooked main meal for himself if he has the ingredients; or

(b) he is so severely disabled physically or mentally that, by day, he requires from another person-

(i) frequent attention throughout the day in connection with his bodily functions; or

(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

(i) he requires from another person prolonged or repeated attention in connection with his bodily functions; or

(ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.

7. There are two points to note about those provisions.

8. The first point concerns the cooked main meal test in section 72(1)(a)(ii). This is worded differently from the other provisions in that it depends on the claimant being unable to prepare a cooked main meal. In contrast, the other provisions depend on the claimant requiring attention or supervision. I respectfully agree with Judge Turnbull that, even if the tribunal was entitled to take Mr K at his word, his word did not extent to this aspect of the care component. The issue now arises: was the tribunal under a duty to consider the cooked main meal test?

9. The second point is that the need for attention or supervision is a condition of entitlement to an award. The award takes the form of an award of one of three rates: section 72(4). The rate of the award determines the amount that is paid to a claimant. The result is that there is no need for a claimant to be willing to receive attention or supervision. The conditions in section 72(1) determine whether an award can be made and, if so, the rate. Leaving aside the cooked main meal test, they depend on the claimant having a need. The award that is made does not provide the claimant with the care required. It provides a sum of money. The award is not conditional on that money being used towards the care needs that led to the award. A claimant is free to save it or to spend it, and has free of choice on how it is spent. Mr K’s comments to the tribunal show that he misunderstood the distinction between the conditions for an award and the nature of the award. The issue now arises: was the tribunal under a duty to disabuse him or to disregard his wishes?

The scope of an appeal

10. Section 12(8) of the Social Security Act 1998 provides:

In deciding an appeal under this section, an appeal tribunal-

(a) need not consider any issue that is not raised by the appeal; …

Two propositions follow from that provision:

· a tribunal must consider any issue that is raised by the appeal;

· a tribunal may consider any other issue.

11. Mr K had identified physical problems with cooking in his claim pack (page 32) and the examining medical practitioner had supported him so far as reaching an oven was concerned (page 204). That evidence was sufficient to raise the issue of, and to trigger the tribunal’s duty to consider, the cooked main meal test. However, Mr K had disclaimed any wish that this issue be considered. Two related issues arise. Should the tribunal have sought to explain Mr K’s misunderstanding? Alternatively, was the tribunal under a duty to exercise its power to consider it anyway?

The tribunal’s duties

12. A tribunal has always been under duties to assist a claimant, especially a claimant who is inarticulate, uninformed and not represented. This obligation has been variously called the inquisitorial approach and the enabling approach. Whatever the name, the purpose is to ensure, as best a tribunal can, that a claimant’s right of appeal is not purely abstract, but effective. As the Commissioner explained in R(I) 6/69:

7. … How much assistance and encouragement is required will necessarily vary from case to case and from claimant to claimant . . . But the broad general principle is that the claimant has a right to be heard and that a Tribunal has a corresponding duty not only to ensure that he is aware of this right but also to assist him, by such means as may be appropriate in any particular case, to exercise it. The fact that a tribunal is master of its own procedure makes it the more urgent that this principle should be observed.

Nowadays, these approaches can be seen as the embodiment of the duties under rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No 2685):

2 Overriding objective and parties’ obligation to co-operate with the Tribunal

(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes—

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(d) using any special expertise of the Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Tribunal must seek to give effect to the overriding objective when it—

(a) exercises any power under these Rules; or

(b) interprets any rule or practice direction.

(4) Parties must—

(a) help the Tribunal to further the overriding objective; and

(b) co-operate with the Tribunal generally.

13. A tribunal is entitled to limit itself to the issues raised by a competent representative: Jeleniewicz v Secretary of State for Work and Pensions at [31] reported as part of R(IS) 3/09. A representative’s duty to present a reliable statement of the issues for decision would now be part of the duty to co-operate generally with the tribunal under rule 2(4)(b). But Mr K was not represented at the hearing. He had, it is true, had the services of a solicitor, but they had essentially been limited to obtaining a copy of his medical records and sending it to the tribunal.

14. The tribunal should always consider how it can best help a claimant who is not represented. This help may manifest itself in the way that the tribunal questions a claimant. It may appear in the way that the tribunal exercises its powers, such as the power to consider issues not raised by the appeal. In this case, it should have been evident to the tribunal that Mr K had misunderstood. It should have explained the law to Mr K so that he was able to make an informed decision whether he wanted the tribunal to consider the care component. And the tribunal should have ensured that he understood that his concern did not, in any event, affect the cooked main meal test. In this way, the tribunal would, to use the language of rule 2, have used its special expertise effectively so that Mr K could participate fully in the proceedings. It did not do that, and that is ultimately why I have set its decision aside.

C. The effect of my decision

15. There will be a rehearing of Mr K’s appeal before a different panel of the First-tier Tribunal. I hope that he now understands the nature of an award of disability living allowance. I am sure that the CAB, on his behalf, will ensure that the relevant issues are identified for the tribunal in advance of the hearing.

Signed on original
on 26 September 2012

Edward Jacobs
Upper Tribunal Judge