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Decision in brief

Tribunal therefore erred in taking into account the claimant’s circumstances subsequent to the date of the decision (and which on the facts were not capable of being referred back to the date of the decision) and limiting the period of the award on the basis of those circumstances

Decision in brief

First-tier Tribunal refused entitlement on basis of its finding that claimant did not have, as required, ‘severe behavioural problems’ – given extensive findings of significant difficulties with behaviour, tribunal erred in not giving adequate reasons for concluding that the claimant did not have severe behavioural problems – decision substituted awarding the high rate of the mobility component via the severe mental impairment route – MG v SSWP (DLA) [2012] UKUT 429 (AAC) and XTC v SSWP (DLA) [2020] UKUT 342 (AAC) cited as considering proper application of the relevant statutory tests

Comment from CPAG

For a wider discussion, see our article DLA mobility and the severe mental impairment route.

Decision in brief

First-tier Tribunal, in refusing the appeal, erred by considering only the 10 documented accidents in the claim forms, and should have considered whether other undocumented incidents were accidents – also erred in failing to give adequate reasons for concluding that the undocumented incidents and routine heading of the ball were effective causes of the claimant’s condition but that the more significant documented head impacts were not effective causes, and perversely concluding that the claimant’s family history of dementia was an effective cause where the evidence for that was limited and the family members concerned were also former professional footballers – remitted to a fresh tribunal

Decision in brief

Claimant’s appeal was struck out by the First-tier Tribunal for lack of jurisdiction as it did not consider there had been a refusal to carry out an MR – that was an error – the MR requirement is that that the Secretary of State has ‘considered whether to revise’ following an application – the Secretary of State clearly had ‘considered’ that and it was beyond doubt that the Secretary of State had refused the application for revision – tribunal should have used its powers to waive the absence of a mandatory reconsideration notice

Decision in brief

Claimant unable to share a bedroom with his partner due to disability, but unable to qualify for a second bedroom to be allowed as he was not in receipt of the required disability benefit (in his case, the middle or high rate of the disability living allowance care component) as he had been refused it and not sought to reclaim it – no breach of the claimant’s human rights under the European Convention on Human Rights – no discrimination for disability as the difference between the claimant and someone getting the relevant disability benefit was not disability based – if justification for the requirement to be getting a relevant disability benefit was required, then the requirement had objective and reasonable justification (and so was not unlawful)

Decision in brief

Tribunal erred in deciding claimant was not self-employed because his earnings were taxed under the PAYE system – that was not the correct test – the Social Security Benefit (Computation of Earnings) Regulations 1996 provide that an ‘employed earner’ is someone in gainful employment ‘under a contract of service’, and that ‘self-employed earner’ is a residual category (ie, someone who is in gainful employment ‘otherwise than as an employed earner’) – it was not open to the tribunal to decide that the claimant was neither an employed earner nor self-employed but instead a ‘worker’ – it was the contractual relationship that was key in deciding whether claimant was working under a ‘contract of service’ (and so an employee) or not

Decision in brief

Tribunal erred in holding that claimant could engage with others on basis of interactions with neighbours – tribunal adopted unduly narrow approach in failing to address whether the neighbours were already known to the claimant and how she would engage with people unknown to her – per HA v SSWP (PIP) [2018] UKUT 56 (AAC), tribunal must undertake a holistic assessment of ability to engage with others, considering a range of interactions and not limiting itself to those involving familiar persons

Decision in brief

Senior President of Tribunals has issued a Practice Statement requiring judges to make a record of proceedings and for tribunal to preserve it for a specified period – record of proceedings could, depending on facts, consist of multiple documents, such as an audio recording, judge’s notes and written reasons – but in this case, even all of that taken together did not adequately record the evidence taken and submissions made