Upper Tribunal (Administrative Appeals Chamber), December 02, 2016,  UKUT 538 (AAC)
|Resolution Date:||December 02, 2016|
|Issuing Organization:||Upper Tribunal (Administrative Appeals Chamber)|
|Actores:||DS v Secretary of State for Work and Pensions (PIP) (Revisions, supersessions and reviews : supersession: general)|
DS v Secretary of State for Work and Pensions (PIP)  UKUT 0538 (AAC)
DECISION OF THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
The claimant's appeal to the Upper Tribunal is allowed. The decision of the Manchester First-tier Tribunal dated 7 January 2016 involved an error on a point of law and is set aside. The case is remitted to a differently constituted tribunal within the Social Entitlement Chamber of the First-tier Tribunal for reconsideration in accordance with the directions given in paragraph 23 below and any further procedural directions that may be given by a First-tier Tribunal judge (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(i)).
REASONS FOR DECISION
The claimant appeals against the decision of the tribunal of 7 January 2016 with the permission of Upper Tribunal Judge Wright given on 22 July 2016 after an oral hearing. The representative of the Secretary of State (Mr Spencer) in the written submission dated 5 September 2016 supports the appeal to the Upper Tribunal and submits that the decision of the tribunal of 7 January 2016 should be set aside and the case remitted to a new tribunal for rehearing. In his reply dated 12 October 2016 the claimant has asked for an oral hearing before the Upper Tribunal. As I have decided on consideration of the papers that his appeal to the Upper Tribunal should be allowed, there is no need for a hearing at the present stage. The claimant will have his opportunity for an oral hearing in front of the new tribunal that rehears his case. I suspect that that is what the claimant was really asking for in his reply.
The claimant had claimed personal independence payment (PIP) in 2013. He completed a PIP2 (how your disability affects you) form that he signed on 12 July 2013 and attended a consultation with a nurse on 9 August 2013. His GP had written that he suffered from tonic clonic epilepsy with frequent fits that was proving hard to control with consultant involvement. The nurse accepted that he qualified for the following points-scoring daily living descriptors: needs supervision or assistance to either prepare or cook a simple meal (1(e)); needs either to use an aid or appliance to be able to manage medication or supervision, prompting or assistance to be able to manage medication or monitor a health condition (3(b)); needs supervision or prompting to be able to wash or bathe (4(c)); needs to use an aid or appliance to be able to dress or undress (6(b)); and needs prompting to be able to engage with other people (9)(b)). She also accepted that he qualified for mobility descriptor 1(b) for needing prompting to be able to undertake any journey to avoid overwhelming psychological distress. She suggested a review after 12 months because the claimant was having his anti-epileptic drugs increased, which it was hoped would control his seizures, and was also awaiting the outcome of some investigation into a knee problem that might require further surgery.
The award of the daily living component of PIP at the standard rate, but no mobility component was made for the period from 3 June 2013 to 8 August 2015, but the notification letter dated 20 November 2013 stated that the claimant would be contacted after 9 August 2014 to make sure he was receiving the right level of PIP.
The claimant was evidently contacted about that time because he completed another PIP2 form and signed it on 29 August 2014. He enclosed a letter dated 29 August 2014 from his GP saying that the epilepsy was proving hard to control and was currently getting worse, being due for a change of medication, and that the claimant was also awaiting intervention from a mental health team to help with his chronic anxiety. He attended another consultation with a different nurse on 16 March 2015. This time no points-scoring descriptors were accepted at all. On 10 June 2015 the decision was made that the claimant was no longer entitled to PIP from that date. The decision-maker's reasoning as set out in the notification letter of the same date was as follows:
``Taking account of the further consultation with the medical assessor, I have changed the descriptors previously awarded on the grounds of medical evidence received and the decision is effective from today. I have changed the decision from today as you could not be expected to know the evidence received shows you are no longer entitled. I made my decision using information about your illnesses and disabilities including details of any treatment, medication, test results and symptoms. I consider this information is the most suitable available and enough to decide how much help you need.''
There then followed a brief statement of the areas where the claimant had not indicated any needs in the PIP2 form of 29 August 2014 and an adoption of the nurse's opinion on the areas where the claimant had indicated needs.
The claimant put in a detailed letter of appeal and request for mandatory reconsideration, which was refused. The Secretary of State's written submission simply supported the decision that the claimant was not entitled to PIP from 10 June 2015, as if it had been a decision on a new claim. Section 1 of the document even gave the date of claim as 8 September 2014. The claimant's then representatives, Shelter, put in a written submission with supporting medical evidence. It was submitted, among other things, that the claimant's condition remained the same as when PIP had been awarded or was possibly getting worse.
The claimant attended the tribunal hearing on 7 January 2016 on his own. In...
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