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Summary

The claimant was a sole trader in his business as an author, musician, publisher and creator of his own intellectual property. He wrote books and composed and recorded music, working on average 11 hours a day. He kept books of account and recorded expenses. During a sample period, his profit was around £8.44 a week. Having originally been awarded WTC, his entitlement was removed on the basis that the work was not (as required under the rules) ‘on a commercial basis’. On appeal, the First-tier Tribunal found that the claimant did not count as self-employed because ‘his activities are not commercial in the sense that they are quite unprofitable and have been so for many years’, and could not be described as ‘genuine and effective’.

Judge Poole QC allowed the claimant’s further appeal. Construing the meaning of ‘on a commercial basis’ in regulation 2(1) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002, No.2005, the judge held that the tribunal had erred in finding that self-employment is not commercial on the basis that it is unprofitable (paragraph 25). That was for a number of reasons. The statutory context for the definition at regulation 2(1) was the general policy intention of making work pay, and if ‘commercial’ was read as ‘profitable’ that could wrongly exclude a number of low-paid people who were genuinely working from universal credit. The definition (as amended in 2015) was to prevent abuse of the system and bogus self-employment, not to prevent genuine self-employment from qualifying for WTC. The amendments did not use the word ‘profitable’. Using profitability as the touchstone of commerciality ignored the core meaning of commercial. ‘Commercial’, held the judge, ‘is essentially about commerce, or buying and selling, and in my opinion that should be the focus...’ (paragraph 25.4). The tribunal was also wrong to use a test of whether the work was ‘genuine and effective’. Although those words were used in explanatory material in the 2015 amendments to the definition, the judge accepted HM Revenue and Customs’ submission that ‘“genuine and effective” is not a concept which assists’ in the definition of self-employment (paragraph 27).

Comment from CPAG

This decision involves an extensive discussion of the approach to the meaning of ‘on a commercial basis’ and regarding the issue of profitability and use of a ‘genuine and effective’ test, and should be treated as the leading decision.

Summary

The claimant had been in receipt of tax credits as a single person. However, HM Revenue and Customs (HMRC) decided to remove entitlement on the basis that the claimant was married to, and not separated from, her husband. That decision was upheld by the First-tier Tribunal. There was no dispute that the claimant was married, as she was married in an Islamic ceremony in Pakistan in 2005 and was not divorced. The tribunal concentrated on whether she was separated in circumstances under which the separation was likely to be permanent. The tribunal took into account a number of facts including that the husband had no permanent address and had keys to the claimant’s property; that he had post delivered to her address; that his name was on the electoral roll at the address; that the claimant had not applied for a single person discount to the council tax; and that they had a joint bank account. The tribunal had also issued a direction that the husband was to attend the hearing, which it instructed the claimant to tell him, and drew an adverse inference from his non-attendance.

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a fresh tribunal. He agreed with HMRC’s submission that although the tribunal had identified the correct legal test, it had erred by placing undue weight on certain aspects of the relationship and failing to address the claimant’s evidence about how the relationship had changed since 2009 (paragraphs 7–9).

Regarding the tribunal’s direction that the husband should attend, the judge said that although entitled to make such a direction, the tribunal seem to have proceeded on the assumption that this was up to the claimant, when the whole basis of her case was that they were estranged. The drawing of an adverse inference from his non-attendance was confused, as one reason for that could indeed be that he did not support the appeal because although he considered they were not separated, in fact they were (paragraphs 17–18). Also, the tribunal had been vague in its fact finding and reasoning. The claimant made very clear arguments explaining her living arrangements in the context of family involvement, and there were a number of ‘contraindications’ to HMRC’s case including that the claimant had no financial support from her husband, and portrayed herself as happily married in order to avoid ‘shame’ on the family, but these were not adequately addressed (paragraphs 24–35). More widely, the tribunal had not viewed the facts ‘through the prism of any relevant cultural context’. Cultural differences (between claimant and tribunal) could apply in the context of relationship breakdown and divorce, and the claimant had specifically said that her cultural background involved family pressures to behave in a certain way (paragraphs 40–48).

Comment from CPAG

The overall message for tribunals is best summed up by Judge Wikeley’s introduction to the decision: 

‘This case is a classic example of why it is important for tribunals to be alive to cultural issues when determining appeals, especially when assessing a party’s evidence about intimate matters relating to personal relationships… to rework an old saying, before you judge a woman, walk a mile in her shoes.’

Summary

The claimant had epilepsy which resulted in seizures that were unpredictable and followed no particular pattern. He had a seizure on the day of his scheduled medical under the work capability assessment and did not attend. Both the decision maker and the subsequent First-tier Tribunal decided that he did not have ‘good cause’ for not attending and, therefore, was not entitled to ESA. This was because it considered that the claimant had unreasonably failed to adopt advice, given in the light of previous failures to attend, that he submit supporting evidence from his GP about his problems in attending, and that he had requested a home visit instead.

Judge Church allowed the claimant’s further appeal and substituted a decision that the claimant did have good cause for not attending the medical. This is that on the day he had an unpredictable seizure and was not able to attend. The decision maker and tribunal had applied the wrong test of good cause in effectively requiring the claimant to have submitted further medical evidence and requested a home visit. Specifically, on the facts the tribunal’s decision that the claimant did not act reasonably and that therefore his state of health of the day of the assessment did not amount to good cause fell outside the range of reasonable decisions open to it on the facts (paragraph 37).

The ‘good cause’ provision was provided at regulation 23 of the Employment and Support Allowance (2008) Regulations, No.794. When granting permission to appeal, Judge Church said that it was arguable that to apply a standard for ‘good cause’ which requires the claimant to plan substantially in advance, submit further evidence and seek a home visit was to set too high a bar for the claimant. The Secretary of State denied that, arguing that although the claimant’s state of health on the day was clearly relevant, regulation 24 provided that it was possible to take other matters into account, and that allowing a claimant always to rely on his state of health on the day could mean he could always fail to attend future examinations without forfeit. The judge disagreed with that. Regulation 24 clearly required the claimant’s state of health ‘at the relevant time’ to be taken into account. Although other factors could also be relevant, on the facts of this case requiring the claimant to have acted in advance was ‘unreasonably harsh’. It is open to the Secretary of State to offer a home visit. Regarding future appointments, neither the decision maker nor the tribunal was obliged to accept what a claimant says at face value; but ‘if a claimant is genuinely too unwell to attend a whole series of appointments for medical examinations that would tend to suggest that the claimant is someone who would be likely to qualify for employment and support allowance and shouldn’t, therefore, be denied the opportunity to be assessed for it’ (paragraphs 31–32).

Comment from CPAG

The decision is a corrective to notions that claimants can generally be expected to initiate arrangements such as home visits and plan ahead to the extent that illness on the day is somehow unimportant.

Summary

The claimant was working under the ‘permitted work’ rules. She was working irregular hours under a zero-hour contract. Her entitlement was superseded (and overpayment decisions issued) on the basis that, after averaging her earnings over approximate six-month periods, she had exceeded the relevant earnings limit in the permitted work rules. The First-tier Tribunal dismissed her appeal, holding that there was no weekly pattern of earnings, and that it could not identify a ‘different/fairer’ pattern.

Judge Wikeley set aside the decision and remade the substantive supersession decision, so that the claimant’s entitlement was to be calculated using averaging over a period of five weeks (rather than six months). The tribunal had erred in deciding it could not identify a different or fairer pattern (paragraph 24).

As the claimant was working variable hours under a zero-hour contract, her income plainly fluctuated. That meant that regulation 94 of the Employment and Support Allowance Regulations 2008, No.794 was engaged (via regulation 88 on calculation of income from ‘exempt’ work). Under regulation 94(6), where the claimant’s income has changed more than once, or the ‘regular pattern of work is such that the claimant does not work every week’, averaging should be carried out. That is over a recognisable cycle of work where there is one or (under regulation 94(6)(b)) in any other case over a period of five weeks, or whatever other period allows the income to be determined most accurately. The judge considered that the default five-week rolling average was the appropriate one to use (paragraph 25).

Summary

The claimant’s late husband was born in Pakistan and married his first wife there in 1976. He then moved to the UK, and was joined a few years later by his first wife. He became a British citizen. In 2001, he pronounced a talaq with the intention of divorcing his wife and the couple separated. In 2008, he married the claimant in Pakistan, and shortly after that obtained a decree absolute of divorce (ie, under English law) from his first wife. In 2011, the first wife died. In 2012, the claimant had a child with her husband, but her husband died in 2016 – by which time the claimant had been married to him under Islamic law for eight years and had been his only living spouse for five years. It was eventually decided that she was not entitled to bereavement benefits, on the basis that her marriage was polygamous and – as the husband was domiciled in England at the time of the marriage – not a lawful marriage under English law. That was upheld by the First-tier Tribunal.

Judge Wikeley allowed the claimant’s further appeal and substituted a decision that the claimant was entitled to the relevant bereavement benefits (which at the time of claim were bereavement payment and widowed parent’s allowance). The refusal of bereavement payment was in breach of the claimant’s human rights under Article 14 of the European Convention on Human Rights (‘the Convention’) read in conjunction with Article 1 of Protocol 1. The benefit was within the ambit of Article 14, the claimant was in an analogous situation to a ‘lawful’ widow (ie, one where the marriage is recognised under the law of England and Wales) and the discrimination against the claimant was not justified. The same was true for widowed parent’s allowance, although in any case the claimant was also entitled to that benefit (ie, including as an unmarried widow) by virtue of the decision in McClaughlin, Re Judicial Review (Northern Ireland) [2018] UKSC 48. The judge held that the relevant secondary legislation (the Social Security and Family Allowances (polygamous Marriages) Regulations 1975, No.561, which allows for lawful polygamous marriages that are ‘in fact monogamous’ to be treated as if they were monogamous), should be read down so as to be compliant with the Convention (paragraph 10).

It was conceded that, although the claimant’s 2008 polygamous marriage in Pakistan was valid under local law, it was void for the purposes of the law of England and Wales (section 11(d) of the Matrimonial Causes Act 1973) (paragraph 37). The Secretary of State submitted this meant that the claimant was simply not a ‘spouse’ of her late husband, including under the 1975 regulations, as the polygamous marriage was void under English law. But the judge considered that the claimant was in a position analogous with that of a ‘lawful’ widow (as the sole surviving widow of an overseas religious marriage, validly contracted under local law) and that the difference in treatment compared to that of a ‘lawful’ widow was not justified. He rejected the Secretary of State’s justification arguments, which included public policy concerning polygamy and the need for ‘bright lines’ in the rules. The judge considered that most people would take account of the fact that the late husband had never lived with both wives at the same time and had divorced his first wife, and that section 11 of the Matrimonial Causes Act in fact did provide that some polygamous marriages would not be void – ie, where neither party was domiciled in England and Wales at the time of the marriage. Overall, the discrimination against the claimant was not justified (paragraphs 72–86). Applying regulation 2 of the 1975 regulations so as to be compliant with the Convention (ie, to regard the claimant’s polygamous marriage as lawful), the ‘in fact’ monogamous marriage allowed the benefit claim to succeed.

Comment from CPAG

The individual facts in this case – which included that the claimant was the sole surviving partner, had been lawfully married in Pakistan and that the marriage had been ‘in fact monogamous’ – are important. The judge indicated that its reasoning might be capable of application to the new bereavement support payment, although no argument was heard about that (paragraph 21).

Summary

The claimant had chronic anxiety and depression, and only felt genuinely safe when at home or in his car. He feared strangers and needed to know, before setting out, who he would meet at the end of the journey. On appeal, the First-tier Tribunal scored him 10 points under mobility Activity 2 (moving around), but no points under mobility Activity 1 (planning and following journeys). The tribunal considered that the claimant was able to undertake journeys, both familiar and unfamiliar, by driving, even though he would not be able to do so by walking.

Judge Hemingway allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in failing to enquire sufficiently into the claimant’s ability to follow the route of unfamiliar journeys in his car (paragraphs 9–10). There was sufficient evidence of his ability to follow the route of familiar journeys. But the tribunal had not enquired into his ability to follow the route of unfamiliar journeys, something that was relevant to the possibility of a further 10 points under descriptor 1(d).

The judge also considered whether the tribunal was right in proceeding on the basis that the route of a journey could be followed from start to end in a car. On the facts, the tribunal had also failed to make sufficient findings about this. As a matter of common sense, there would always be a part of a journey using a car which would have to be accomplished by other means – ie, to get to the car and then to leave it to get to the ultimate destination. The facts of the client’s case indicated the part of the journey from leaving his car to get to his ultimate destination could be problematic for him, and the tribunal had failed to address that (paragraph 12). But the judge rejected an argument that if the claimant could not use public transport for the journey, then he should be regarded as unable to follow the route of the journey. Although that was suggested in previous versions of the PIP Assessment Guide, that was merely guidance and not binding law, and the judge did not agree with it (paragraph 13).

Comment from CPAG

The judge does not refer in this decision to JC v SSWP (PIP) [2019] UKUT 181 (AAC), which also dealt with, in broadly similar terms, the issue of ability to follow a route using a car. It is worth noting that the judge in that case did consider the claimant’s ability to use public transport as a relevant factor

Summary

The claimant incurred a sanction for failure to participate on a placement under the work programme. He had turned up as requested, but when asked by the provider to confirm the accuracy of information regarding his identity on a computer screen (including his national insurance number and benefits) he refused, citing data protection concerns. The provider refused to allow the claimant to proceed to participate in the scheme. The First-tier Tribunal refused his appeal, rejecting the claimant’s argument of a breach of the Data Protection Act, and holding that by refusing to confirm the details on the computer he had, without good cause, failed to participate in the scheme.

Judge Hemingway allowed the claimants’ appeal and remitted the case to a new tribunal. He was not persuaded by any of the claimant’s arguments about data protection concerns. Such concerns could have been pursued through the appropriate enforcement channels provided by the Data Protection Act, and against that background he was not justified in refusing simply to confirm the accuracy of the details on the computer screen (paragraph 13). Neither did the tribunal err in considering conduct before commencement of actual activity on the scheme relevant, or in considering the requirement to confirm identity reasonable (paragraphs 15 –17).

However, the tribunal did err in failing to enquire into whether the claimant offered, or would have offered if asked, an ‘alternative but still satisfactory’ way of confirming his identity. For example, he might have had a passport or driving licence. Without enquiring into whether the claimant offered, or would have offered, such an alternative way of confirming his identity, the tribunal did not have a proper evidential basis for concluding that the claimant had refused to confirm his identity, as distinct from a refusal to confirm the accuracy of the details on the computer screen (paragraph 18).

Comment from CPAG

The claimant’s concerns about data protection did not amount to ‘good cause’ for not participating; however, that is not necessarily the same as a refusal to confirm identity, and that (plus the failure of the tribunal to make findings about that) is what saved the claimant in this case.

Summary

The claimant had learning disabilities. She was entitled to income-related ESA. Her late mother had set up a ‘liferent’ trust for her. Under the terms of the trust, the claimant had a right to receive any income from the trust funds. Although she had no enforceable right to any other payments, the trustees had a power to make additional payments of capital from the fund if they chose to do so. The First- tier Tribunal found that all the payments from the trust fell to be taken into account.

Judge Poole QC set the decision aside and remitted the case to a new tribunal. The tribunal had erred in failing properly to apply the relevant provisions, which were at Schedule 8 paragraph 16 and regulation 112 of the Employment and Support Allowance Regulations 2008, No.794. They provide, respectively, that ‘voluntary’ payments of income are among the income to be disregarded, and that voluntary payments not made at regular intervals are to be treated as capital. In so holding, the judge considered whether (as argued by the claimant) the trust should be regarded as a ‘discretionary’ trust, with the payments from it ignored. It was argued that the claimant had no control of the actual amounts she received or of the timings of the payments. Further, with reference to the official guidance at paragraph 28502 of the Decision Makers’ Guide (DMG), if the income was paid at the discretion of the trustees, it should be treated as a voluntary payment.

On the evidence, the trust was a ‘liferent’ trust with a power to advance capital and was not a ‘purely discretionary’ trust (paragraph 17). To identify the properties of a trust, it was necessary to consult the trust deeds or document, and the ‘way in which trustees administer trust funds does not change the character of the trust’ (paragraph 18). In this case, the terms of the trust expressly created a liferent trust, which gives the right to receive for life the benefits of a property or assets without the right to dispose of that property or asset. Accordingly, the claimant had a right to receive any income from the trust funds. However, trustees did have the choice as to whether to pay her additional capital. ‘The trust,’ held the judge, ‘is therefore not purely discretionary’ (paragraph 19). He went on to consider what was a ‘voluntary’ payment. He noted there was ‘no general exemption’ which stated that payments from a liferent or discretionary trust were to be left out of account, and that instead the payments must fall within a specific disregard (paragraph 22). He had reference to R v Doncaster Borough Council ex p Boulton [1993] 25 HLR 195, where it was held that ‘voluntary’ in this context did not mean ‘without compulsion’ but rather a payment without anything being received in return. In this case, the judge considered that the trustees did receive something in return for the payments of income from the trust, ‘which was a discharge of their legal obligation arising under the trust to pay liferent income to the claimant’ (paragraph 29). Therefore, the payments of income from the trust were not voluntary. However, the capital payments were voluntary. The official guidance in the DMG was consistent with this: ‘capital advances in excess of the liferent income are money paid at the discretion of the trustees, and fall to be treated as voluntary’ (paragraph 30). If paid at regular intervals, they were to be disregarded as income under paragraph 16 of Schedule 8; if not made at regular intervals, they were to be regarded as capital under regulation 112.

Comment from CPAG

This decision has some important findings about the relevance of the terms of the trust deed as distinct from the actions of the trustees in general, and about liferent trusts in particular. However, it does not disagree with the official guidance that payments of income from a discretionary trust should be regarded as voluntary and therefore ignored.

Summary

The claimant was self-employed both as a legal advisor and a motor car dealer (as the judge noted, an ‘unusual combination’). He had been in receipt of both WTC and child tax credit for a number of years but latterly had found it difficult to make a profit from his work. HM Revenue and Customs (HMRC) decided to terminate his entitlement to WTC, on the basis that he did not satisfy the requirement to count as self-employed for the work to be ‘on a commercial basis’ or for the work to be ‘regular and organised’. The First-tier Tribunal rejected his appeal, noting that despite working over 30 hours a week, he was only making a profit of £49 per week, and that overall there was evidence of just seven financial transactions in the year.

Judge Hemingway held that the tribunal had erred in law, although on the facts did not set the decision aside as HMRC had made a final decision on his entitlement under section 18 of the Tax Credits Act 2002 which the claimant had not challenged, but which he now must in order to change it. The tribunal erred partly in saying that the issue before it was to determine if the work was ‘profitable and commercial’, so suggesting that if it was not profitable, it could not be commercial. As was pointed out in JW v HMRC [2019] UKUT 114 (AAC), self-employment did not of itself require profitability. So although profitability might be a relevant factor to consider, ‘it cannot be said that profitability is actually a requirement and it was not strictly speaking correct to say, as this tribunal did, that that was one of the issues it was required to decide with respect to entitlement’ (paragraphs 18–19).

Further, the tribunal erred in concluding that the work was not ‘regular and organised’ because of the limited number of financial transactions which had occurred in the relevant tax year. The judge did not agree with the implication that it ‘necessarily follows that a business is not regular and/or organised simply because there are a limited number of actual financial transactions’. If a business was properly administered and regular in the sense of, for example, regular attempts to obtain business or generate a profit, then that part of the test could be met notwithstanding a limited number of actual transactions (paragraph 19).

Comment from CPAG

This decision expressly approves the finding in JW v HMRC that profitability is not essential for work to count as self-employment in WTC. It further rules out an approach which in effect requires a sufficient number of actual financial transactions for the work to count as ‘regular and organised’. Neither decision holds that profitability and the number of transactions are actually irrelevant.

Summary

The claimant was awarded the standard rate of the daily living component of PIP, but not the mobility component. When the case reached the First-tier Tribunal, it increased the award of the daily living component to the enhanced rate but refused to make an award of the mobility component. In the course of the appeal, it emerged that the official medical report (prepared by Capita) had been subject to an audit and had been altered (actually, to the claimant’s advantage, by increasing the points score for daily living). The tribunal refused to adjourn to get further details of the audit and the change.

Chief Commissioner Mullan held that the tribunal had erred in law and remitted the case to a fresh tribunal. The tribunal had erred in failing to put its observations of the claimant’s walking ability to her for comment, and so breaching the rules of natural justice. The tribunal had also erred in failing to adjourn as it refused the request on the basis that it was an attempt to ‘ambush’ the Department at the hearing, when in fact the issue of the audit of the report had been raised by the claimant’s representative well in advance of the hearing.

Although the Chief Commissioner was not strictly required to consider the substantive ground (ie, that the tribunal had erred in not having investigated the changes made to the medical report), he thought it right to issue guidance for future cases. That included the following (paragraph 64): the Department is ‘under a duty to co-operate with the tribunal’ and must also ensure an ‘equality of arms’ between the Department and the claimant; where an appeal raises a challenge to the validity of the official medical report involving an assertion that the report has been subject to audit and/or amendment, ‘there will usually be a requirement on the appeal tribunal to adjourn to investigate the matter further’; this was an issue of ‘fairness to the appellant’, and to that it extent it may not matter that the disclosure may not make a difference to the outcome. Applying that to the present case, the tribunal had also erred in failing to make further enquiries about the possible amendment to the report.

Comment from CPAG

This is a decision of the Northern Ireland Commissioners, and as such is not strictly binding in Great Britain. However, it draws on authority from the Upper Tribunal (in particular, CDLA/4127/2003, PF v SSWP (ESA) [2013] UKUT 634 (AAC) and AG v SSWP [2009] UKUT 127 (AAC)) and will be of persuasive authority.

Summary

The claimant was refused entitlement to the mobility component of PIP. This was because the claimant considered that he could mobilise so as to be able to plan and follow the route of a journey using his car. The tribunal did not consider how the claimant might fare if seeking to follow the route of a journey on foot or using public transport.

Judge Hemingway allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred firstly in failing to address the medical evidence before it, including a letter from the claimant’s GP, suggesting the claimant’s ability to drive was impaired more than it considered was the case, resulting in a failure to adequately explain its findings (paragraph 8). Further, in comments strictly obiter (not essential to the decision), the judge considered that rather than an exclusive focus on the ability to mobilise in a car, what was required was ‘an overall and holistic assessment encompassing a claimant’s ability to follow the route of a journey through various ways, including driving, travelling on foot and utilising public transport, with neither, of themselves, being determinative’ (paragraph 10). The judge agreed with the Secretary of State’s representative that tribunals should not limit themselves to considering, solely, an ability to follow the route of a journey using a car.

The judge did not agree that a failure to consider a claimant’s ability to use public transport ‘of itself’ amounts to an error of law. That was because the guidance in the official PIP assessment guide that a person should only be considered to follow an unfamiliar journey if s/he could use public transport was merely guidance, not the law (paragraph 10). However, the judge went on to say that an overall and holistic assessment was required, and also repeated that the tribunal should also have considered the possibility that even if a car could be used, parts of the journey might still have to be undertaken on foot, as held in JB v SSWP (PIP) [2019] UKUT 203 (AAC) (another decision of Judge Hemingway).

Comment from CPAG

Although strictly obiter, the recommendation of an ‘overall and holistic assessment’ of the ability to plan and follow the route of a journey would seem very difficult to depart from. Clearly, the judge considers that the crucial importance given to the ability to use public transport by the PIP assessment guide is an overstatement (a point he also made in JB v SSWP); but a tribunal that fails to consider public transport as part of the ‘overall and holistic assessment’ would surely be erring by given it too little importance. See also the article on p6 of Bulletin 273.

Summary

The claimant was refused PIP after failing, without good reason, to attend her medical. Following mandatory reconsideration, she appealed. Before the appeal was heard, a new medical was arranged as the DWP now accepted she had good reason for not attending (she was ‘put back on the PIP journey’, to use the DWP language). However, although a medical report was prepared indicating that the claimant would score nil points, no formal decision on entitlement was made. When the First-tier Tribunal considered the claimant’s appeal, it took into account the medical report and decided that she was not entitled to PIP.

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in failing to make adequate findings of fact and in giving inadequate reasons for its decision. There was no error in the tribunal proceeding, as no actual new decision had been taken on the claimant’s entitlement after the rearranged medical, and so the appeal had not lapsed (AI v SSWP (PIP) [2019] UKUT 103 (AAC) (also by Judge Wikeley)). The tribunal had not erred in taking the medical report (ie, from the rearranged medical) into account. Although a tribunal was barred from taking into account changes of circumstance after the date of the decision under appeal, evidence produced at a later date could still shed light on how matters stood at an earlier date, and on the facts of the present case, the tribunal ‘was probably entitled’ to take the view that the claimant’s condition was ‘probably little different’ between the date of the decision and the date of the medical (paragraph 13).

The judge considered that ‘in the great majority of cases’ where the Upper Tribunal finds that a tribunal erred in a case like this, the correct approach will be to remit the case to a fresh tribunal, rather than remit to the Secretary of State for a decision. Although it was true that at no stage in this case had a decision maker actually made a decision as to which PIP descriptors applied, the extreme delay that had already occurred, the fact that the Secretary of State had had ample time to make such a decision after the rearranged medical, and that the First-tier Tribunal was ‘better placed’ than the decision maker to make a fair decision all supported remission to a fresh tribunal (paragraphs 18–22).

Comment from CPAG

The fact that (despite the issuing of the medical report) there was still no formal new decision on entitlement after the rearranged medical was crucial to the appeal not lapsing and the First-tier Tribunal retaining jurisdiction. In similar cases, given that any such history will have involved considerable delay, the judge’s recommendation, in the event of the tribunal erring in law, of remittal to a new tribunal rather than to a decision maker is likely to apply.