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 Peterborough First-tier Tribunal dated 03 April 2012 under file reference SC143/11/01627 involves an error on a point of law and 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 decisions dated 12 May 2011 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 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

The following directions apply to the re-hearing:

(1)	The re-hearing will be at an oral hearing. 

(2)	The new tribunal should not involve the tribunal judge or other members who sat on the tribunal that considered this appeal at the hearing in Peterborough on 03 April 2012.

(3)	If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the regional office of Her Majesty’s Courts and Tribunals Service in Birmingham within one month of the issue of this decision.  

(4)	A copy of the submission to the Upper Tribunal by Mrs J Camponi, the Secretary of State’s representative, dated 26 April 2013 (docs 331-333 of the Upper Tribunal file, including attachment), should be provided to the next tribunal.  

(5)	The new tribunal must consider all the evidence afresh and 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 end up reaching the same or a different result to the outcome of 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

Summary of Upper Tribunal’s decision
1.	The appellant’s appeal to the Upper Tribunal is allowed. The decision of the Peterborough First-tier Tribunal (FTT) on 3 April 2012 involves an error on a point of law. That tribunal decision is set aside; it now has no effect. 

2.	The case needs to be re-heard by a new FTT. It is very important that the Appellant attends the new hearing so that the new tribunal gets a full picture of his problems and how they affect him. He may, of course, come with a friend for support.

3.	The new FTT will re-hear the Appellant’s original appeal against the Secretary of State’s decision on his claim for disability living allowance (DLA). Simply because this appeal to the Upper Tribunal has succeeded on the law does not necessarily mean that the Appellant will win at the FTT re-hearing on the facts. It all depends on the findings of fact that the new FTT makes on the evidence before them. That is why it is so important that the Appellant attends.

A few words about the FTT’s statement of reasons
4.	The Appellant did not attend the oral hearing before the FTT, which dismissed his appeal. The tribunal had to do the best it could on the (fairly extensive) documentary material that it had. I should say at the outset that the FTT’s statement of reasons has many strong points. It is clearly written and in many ways comprehensive. The FTT did not treat the Appellant’s absence from the hearing as a reason to skimp on its consideration of the appeal. The FTT’s decision is plainly justifiable in certain aspects (for example, its finding that there was no entitlement to the higher rate of the mobility component of DLA).

5.	However, for the reasons that follow I conclude that the FTT’s decision does involve an error of law. I emphasise that this is an unusual case. The Appellant suffers from a rare condition, hyperacusis, involving extreme intolerance to noise. As he explained in his grounds of appeal to the FTT, he “has suffered from a severe aversion, phobia, or revulsion of noise for a number of years”.

The background to this appeal
6.	On 21 February 2011 the Appellant made his claim for DLA. In answer to the questions on the claim form about getting about outside, he wrote as follows:

“Probably due to my intolerance of everyday noise I hate going out and to be near people or noise. I am totally stressed out and anxious and suffer panic attacks and am desperate to get back home. I get angry, aggressive and violent and can’t think at all ... I feel the need to run away and curse and swear and I could hit anyone who confronts me at that time. I have been arrested at Council office due to this but not charged by police who were understanding and just drove me home. This gets me into trouble with police, neighbours, officials, landlords etc and puts my home at risk. I feel I need assistance due to this.”

7.	His answer to the question about day-time supervision needs was in similar terms, where he stated that “my severe intolerance to noise or every day sounds makes me angry, aggressive, violent, anxious, panicky, and lose concentration, and have memory loss where my mind is totally blank.”

8.	On 1 May 2011, on a standard questionnaire, a GP at the surgery he attended advised that “he does get agitated and has reduced tolerance in noisy places”. I note that the GP who completed the form was not the doctor that the Appellant named on his DLA claim form as his own GP, but a colleague at the same practice. The GP who signed the form also noted that the Appellant had not been seen since September 2010, that he “is not a frequent attender at the surgery” and in answer to one question started by saying “from the records, I get the impression...”. All this suggests that the GP, while doing his best, may not have had a full picture of the Appellant’s problems.

9.	In support of his claim, the Appellant also produced a copy of an NHS Trust psychiatric assessment dated 14 March 2011. This referred to “building works, noisy neighbours” as precipitating events. The heading “evidence of risk to others” included the comment “all the time – nuisance neighbours – authority”. It was not clear whether this was the CPN’s assessment or the Appellant’s self-assessment. The CPN identified “some paranoid content of thoughts”. Anyone reading this report would understand, even though it is drafted in rather clipped terms, that the Appellant was not well.

10.	The Appellant also produced an earlier letter (dated 20 December 2010) from an ENT registrar. This referred to the diagnosis of hyperacusis and expressed the view that there was a psychological aspect to the case.

11.	On 12 May 2011 a decision-maker refused the Appellant’s DLA claim. The Appellant asked for the matter to be reconsidered. The Department then arranged for an EMP (examining medical practitioner) report to be carried out. The Appellant attended an examination centre on 16 September 2011, travelling alone a short distance but by taxi. The EMP recorded the Appellant as telling him that he did not require supervision from others. It is right to say that the Appellant was unhappy with the examining doctor, who he said did not understand hyperacusis, and challenged his report, which was certainly not supportive of an award of DLA.

12.	The Appellant then provided further evidence in the form of (a) a copy of a recent letter by his housing officer (dated 2 February 2011), supporting his application for re-housing, due to noise problems and their effect on him; (b) copies of county court injunctions which his landlord housing association had obtained against him in 2004 and 2005, due to his anti-social and threatening behaviour; and (c) an affidavit sworn by one of the landlord’s staff in 2004, in support of one such injunction, which referred to a number of deeply unpleasant and worrying incidents involving the Appellant. There was no official documentary evidence of any more recent incidents, but that may well be because the Appellant, as he put it, had become a prisoner in his own home, rarely venturing out.

The First-tier Tribunal’s decision
13.	As noted above, the FTT dismissed the appeal following a hearing which the Appellant did not attend. I can see no error of law in the tribunal’s carefully reasoned decision to proceed in his absence.

14.	The FTT concluded that the Appellant “did not reasonably require guidance or supervision from another person for most of the time when walking out of doors. More often than not, no one was reasonably required to direct, lead or monitor if necessary when he was walking out of doors” (at [5]). He therefore did not qualify for the lower rate of the mobility component of DLA.

15.	The FTT further stated as follows:

“[6.] The appellant was not so severely disabled that disregarding any ability to use routes familiar to him he could not take advantage of the faculty of walking out of doors without guidance or supervision from another person most of the time. Attempting to assist the appellant to repress the anger and aggression referred to at the bottom of page 87 [which was in similar terms to his DLA claim form] would not amount to guidance or supervision. As indicated above, the appellant informed the ADA [approved disability analyst] that he did not require supervision from others. Insofar as the Police and other officials had been subjected to his aggression it seems unlikely, in any event, that another person would be able to persuade the appellant to calm down in such situations. Insofar as the appellant claims that his sensitive sense of hearing causes problems indoors and outdoors another person with him outdoors would not appear to be able to assist him avoid such effect as it has on him.”

16.	In its further reasoning, the FTT relied heavily on the EMP report to support its findings.

17.	The Appellant then applied for permission to appeal. He wrote, or rather typed, an 87-page letter which set out in great detail, and with some repetition, his reasons for appealing.

The proceedings before the Upper Tribunal
18.	I gave permission to appeal in the following terms:

“1. The grounds of appeal as set out by the Appellant are lengthy. Not all are persuasive – for example, his main point is that neither the ATOS doctor nor the medical member of the First-tier Tribunal (FTT) panel are specialists in hyperacusis. That may well be right, but it does not affect the FTT’s decision. ATOS doctors are by definition generalists. FTT medical members may be GPs or specialists, but there is no requirement that they be experts in the particular field of medicine involved. Their task is not to diagnose or treat, but to provide their medical expertise in evaluating evidence. Thus the law simply refers to the tribunal medical member being e.g. a registered medical practitioner and not an expert in the particular field of medicine in question (confirmed by Mrs Commissioner Parker, in unreported Social Security Commissioner’s decision CSI/146/2003).

2. There is, however, sufficient here for me to give permission to appeal on the basis it is arguable the tribunal may have erred in law. I recognise that the tribunal was in a difficult position, not least as the Appellant’s condition is on any reckoning unusual and the case was being considered on the papers.

3. First, the FTT appears to have assumed that because the Appellant does not go out due to hyperacusis, it therefore did not need to consider the situations in which he might find himself. It is unclear why attempting to assist the Appellant with anger and aggression would not amount to guidance or supervision (see statement of reasons at [6]). It is arguable that those issues needed to be explored – see Social Security Commissioner decisions CDLA/3781/2003 and CDLA/722/2005. Those cases appear to have been concerned with risks of physical harm. It is not clear how far this might be the same with anti-social behaviour.

4. Second, the FTT also took the view that any guidance or supervision would make no difference (also at [6]). However, ‘The fact that a person chooses not to walk in unfamiliar areas does not frustrate the purpose of an award of the lower rate of the mobility component if the person is able to benefit from enhanced facilities for locomotion’ (see R(DLA) 6/03 at paragraph 4). Furthermore ‘No limit is placed on the type of enhanced facilities for locomotion that a claimant might use that help to obtain.  Only if the claimant cannot benefit from any enhanced facilities for locomotion does section 73(8) come into play’ (also at paragraph 4). So, for example, help with taxi fares might assist.

5. I also note that regulation 12(7) and (8) might also be relevant, depending on the facts.”

19.	The Appellant’s appeal to the Upper Tribunal has been supported in a detailed and helpful submission by Mrs J Camponi, the Secretary of State’s representative in these proceedings. She proposes that I allow the appeal, set aside the FTT’s decision and direct a re-hearing. The Appellant has not made any further submission to the Upper Tribunal.

The error of law in the FTT’s approach
20.	As Mrs Camponi notes, the decision of Mr Commissioner (now Judge) Mesher in CDLA/42/1994 is very helpful in this context. At paragraph 21 of his decision the Judge stressed the importance of careful and thorough fact-finding when deciding appeals involving potential entitlement to the lower rate of the mobility component of DLA. Mrs Camponi also agrees that in the present case the FTT erred in law by concluding that “attempting to assist the appellant to repress the anger and aggression ... would not amount to guidance or supervision”.  She further agrees that the FTT erred in law by taking the view that any guidance or supervision would make no difference. She refers to the detailed annotation in Social Security Legislation 2012/2013 Vol 1, where the commentary states that the test is “hypothetical in the sense that the claimant is entitled if they could not walk that route without guidance or supervision – it matters not that they would not walk there anyway” (p.159), referring also to reported Commissioner’s decision R(DLA) 6/03.

21.	In short, I agree with that analysis. The FTT’s decision involves an error of law and must be set aside as having no effect. There will have to be a fresh hearing before a new tribunal.

22.	I would just make four further observations.

23.	First, Mrs Camponi argues that case law has established that people who, in the absence of guidance or supervision, may otherwise carry out criminal acts do not qualify for the lower rate of the mobility component of DLA. I would not put it quite as baldly as that. That may well be right if the guidance or supervision is required simply to prevent criminal behaviour. However, it seems to me that the position is different if the person’s psychiatric condition is such that they require guidance or supervision outdoors and, failing that, there is a risk of them engaging in criminal or at least anti-social behaviour. Mrs Camponi may be relying on CDLA/835/1997, but that Commissioner’s decision has been thrown into doubt because of the consent order in V (a child) v Secretary of State for Social Security (February 23, 2001) and more particularly the subsequent decision in CDLA/3781/2003 (see the discussion in Social Security Legislation 2012/2013 Vol 1, also at p.159, at §1.282; see also in particular paragraphs 11 and 12 of Mr Commissioner Mesher’s decision in CDLA/3781/2003). However, I need not resolve that point for the purposes of deciding this appeal.

24.	Second, and despite the obvious care taken by the FTT, it is arguable that the tribunal fell into the trap of referring to the evidence against the Appellant (principally the EMP report) but without really addressing the evidence that went the other way. Obviously the injunctions referred to incidents some years ago – however, the Appellant had also produced more recent evidence and the housing officer’s letter in support of his application for a transfer referred to his “angry outbursts”. The CPN report, although completed in places in a rather abrupt fashion, was also contemporary evidence of some real mental health problems. The CPN report was referred to solely for its omission of any mention of falls – the mental health aspects of the report were not mentioned by the FTT.

25.	Third, some of the considerations which are relevant to deciding whether the Appellant requires “guidance or supervision from another person” within section 73(1)(d) of the Social Security Contributions and Benefits Act 1992 (and so qualifies for lower rate mobility) will also be important when considering whether the Appellant reasonably requires “continual supervision” within section 72(1)(b)(ii) (and so qualifies for middle rate care). However, the day-time care test is concerned with “continual supervision throughout the day”. It may be difficult for the Appellant to show that he requires such supervision when at home.

26.	Fourth, and for the record, the FTT found that there were no care or mobility needs arising from other physical conditions, and in particular back pain. I can see no error of law in the FTT’s approach on those points.

Conclusion
27.	For the reasons explained above, the FTT’s decision involves an error of law.  I must therefore allow the appeal and set aside the decision of the tribunal (Tribunals Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for rehearing by a new First-tier Tribunal subject to the directions listed above (section 12(2)(b)(i)).  

Signed on the original				Nicholas Wikeley
on 16 September 2013				Judge of the Upper Tribunal