Upper Tribunal (Administrative Appeals Chamber), May 03, 2013, [2013] UKUT 220 (AAC)

Resolution Date:May 03, 2013
Issuing Organization:Upper Tribunal (Administrative Appeals Chamber)
Actores:HS v Secretary of State for Work and Pensions (ESA)
 
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HS v Secretary of State for Work and Pensions (ESA)

[2013] UKUT 0220 (AAC)

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CE/3804/2012 HS v SSWP (ESA)

HS v Secretary of State for Work and Pensions (ESA)

[2013] UKUT 0220 (AAC)

CE/3804/2012 HS v SSWP (ESA)

IN THE UPPER TRIBUNAL Case No CE/3804/2012

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision: The appeal is allowed. The decision of the First-tier Tribunal on 17 July 2012 under reference SC068/11/08961, refusing to set aside the substantive decision of the tribunal dated 2 July 2012, involved the making of an error on a point of law and is itself set aside. Acting under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007, I substitute the decision which the tribunal ought to have given, namely:

The tribunal's decision of 2 July 2012 is set aside.

This means the case must now go back to the First-tier Tribunal for a hearing which the claimant can attend.

REASONS FOR DECISION

  1. Both the claimant's representative and the Secretary of State have expressed the view that the decision of the tribunal refusing to set aside involved the making of an error on a point of law and have agreed to a rehearing. That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail. I need only deal with the reason why I am setting aside the tribunal's decision.

  2. The claimant, a woman in her sixties with a substantial range of health conditions which I need not set out, had appealed against a decision dated 19 August 2011 that she scored 0 points under the work capability assessment.

  3. Her appeal had first been listed for 10 April 2012. On that occasion the claimant's son and daughter appeared to explain that their mother could not do so as she had been admitted to hospital with a lung condition. The tribunal adjourned to allow the claimant to attend.

  4. The case was relisted on 2 July 2012. The claimant was not present and the tribunal received no request for an adjournment. Having waited until 20 minutes after the listed start time, it decided to go ahead and dismissed the appeal.

  5. Shortly afterwards an application for set aside was made by the welfare benefits officer attached to the claimant's housing provider on the ground that the claimant had not received notification that the appeal was to be heard and so did not attend.

  6. On 17 July 2012 a decision was taken refusing set aside in the following terms:

    ``1. The Tribunal decision is not...

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