Decision Summary Information

Back to Results | Search Again | Most Recent Decisions

Neutral Citation Number:	2015 UKUT 670 AAC
Reported Number:
File Number:	CSE 19 2014
Appellant:	FN
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	20/11/2015
Date Added:	08/12/2015
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	tribunal jurisdiction
Secondary Category:	Employment and support allowance
Secondary Subcategory:	other
Notes:	Reported as [2016] AACR 24. Tribunal procedure and practice – supersession and conversion – tribunal’s duties when medical reports, previous tribunal decisions and other similar materials not provided The appellant was awarded employment and support allowance (ESA) in April 2010, which was subsequently disallowed following a medical assessment. She successfully appealed twice to the First-tier Tribunal (F-tT) in 2010 and 2011 and was placed in the work-related activity group. In 2012 the Secretary of State decided again that the appellant did not have limited capability for work and she appealed to the Upper Tribunal (UT) after the F-tT upheld that decision. It was submitted on her behalf before the UT that the Secretary of State should have been required by the F-tT to provide relevant documents about his previous decisions concerning the appellant’s capability for work. The substantive issue before the UT was the extent of the duties of a F-tT when faced with an appeal against an incapacity benefit (IB) supersession decision, an ESA supersession decision or an ESA conversion decision where there are materials, including medical reports or previous decisions of the F-tT, which had not been provided or where there may be such reports but the tribunal was not aware of them. In reaching its decision the three-judge panel considered previous decisions including: ST v Secretary of State for Work and Pensions (ESA) [2012] UKUT 469 (AAC); AM v Secretary of State [2013] UKUT 458 (AAC); JC v Department for Social Development (IB) [2011] NICom 177; [2014] AACR 30 and CIB/1509/2004. Held, disallowing the appeal, that: 1. regulation 6(2)(g) and 6(2)(r)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 authorised a supersession procedure but what determined the outcome was a decision, by the decision-maker or the F-tT after an assessment of all of the relevant evidence, as to whether the substantive tests, incapacity for work or limited capability for work, were satisfied: CIB/1509/2004 (paragraph 70); 2. it was not necessary, as a matter of law, for a F-tT to have considered the evidence of a claimant’s previous assessment for work capability assessment or personal capability assessment in every case: AM and JC upheld. The UT held that the decision in ST should be confined to a description of the duties and responsibilities of the Secretary of State in preparing a response in an ESA supersession appeal. Any suggestion that a F-tT would always be in error of law where the Secretary of State failed to provide documentation following an assertion that the claimant’s medical condition was unchanged was not approved (paragraph 82); 3. the principles set out in JC were endorsed and held to be equally applicable to appeals against ESA supersession decisions. Any difference between the principles and the decision in ST lay in the description of the consequences for the F-tT where the Secretary of State failed in his duty to set out the relevant adjudication history and/or provide the documentation associated with that adjudication history. The decision in AM was also consistent with the principles in JC and arguably the decisions in ST and AM were not inconsistent in their outcomes (paragraphs 83 to 86); 4. the requirements imposed on the Secretary of State by ST were binding and it was for the Secretary of State to ensure compliance with them. The Secretary of State’s role in the appeal process, as identified in ST, was endorsed. The UT recommended that the Secretary of State should set out in his response to an appeal any details of the previous adjudication history which were available: JC. The parallel duties and obligations on the representatives and appellants were emphasised (paragraphs 87 to 97); 5. there was no fault in the F-tT’s consideration of the appeal and the argument that it should have treated the available evidence as a submission that the appellant’s medical condition had been unchanged was rejected. The Secretary of State’s response to the appeal was deficient in failing to identify the adjudication history. But the F-tT could not be faulted for failing to address an adjudication history of which it was unaware or for neglecting to seek materials about it. The UT, after considering the adjudication history, was not persuaded that its availability would have made any significant difference to the F-tT’s decision (paragraphs 101 to 111); 6. there was a technical error in the F-tT decision, in that it failed to identify the correct decision which had been superseded. But that error was not material. If that had not been the case the UT would have exercised its power to set aside the decision of the F-tT and to re-make it to the same effect (paragraphs 121 to 122).
Decision(s) to Download:	[2016] AACR 24ws.doc