Upper Tribunal (Administrative Appeals Chamber), December 02, 2016,  UKUT 537 (AAC)
|Resolution Date:||December 02, 2016|
|Issuing Organization:||Upper Tribunal (Administrative Appeals Chamber)|
|Actores:||KB v Secretary of State for Work and Pensions (PIP) (Personal independence payment : General)|
KB v Secretary of State for Work and Pensions (PIP)  UKUT 0537(AAC)
DECISION OF THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
The claimant's appeal to the Upper Tribunal is allowed. The decision of the Preston First-tier Tribunal dated 11 March 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 3 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 11 March 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 6 September 2016 supports the appeal to the Upper Tribunal and submits that the decision of the tribunal of 11 March 2016 should be set aside and the case remitted to a new tribunal for rehearing. In her reply dated 5 October 2016 the claimant understandably did not really engage with the rather technical issues of law raised in Mr Spencer's submission, but concentrated on her current situation. That is not something that the new tribunal will be able to consider directly, as it will be prohibited by section 12(8)(b) of the Social Security Act 1998, just as the tribunal of 11 March 2016 was, from considering circumstances obtaining only after the date of the decision under appeal (22 July 2015).
The claimant had claimed personal independence payment (PIP) in 2013. She completed a PIP2 (how your disability affects you) form that she signed on 3 July 2013 and attended a consultation with an occupational therapist on 4 November 2013. At that point she had diagnoses of bi-polar mood disorder, anxiety disorder and irritable bowel syndrome. The occupational therapist accepted that the claimant qualified for the following points-scoring daily living descriptors: needs prompting to be able to either prepare or cook a simple meal (1(d)); needs prompting to be able to take nutrition (2)(d); needs supervision or prompting to be able to wash or bathe (4(c)); needs either prompting to be able to dress or undress or prompting to be able to select appropriate clothing (6(c)); and needs prompting to be able to engage with other people (9)(b)). She also accepted that the claimant 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 two years because the claimant had long-term conditions requiring a long-term management plan.
The award of the daily living component of PIP at the enhanced rate, but no mobility component, was made for the period from 14 June 2013 to 13 June 2016, but the notification letter dated 27 November 2013 stated that the claimant would be contacted after 13 June 2015 to make sure she was receiving the right level of PIP.
The claimant was evidently contacted about that time because she completed another PIP2 form and signed it on 22 June 2015. On the PIP2 she described her conditions as general anxiety disorder (that had initially been thought to be bi-polar disorder) and irritable bowel syndrome and mentioned the study she was undertaking, her volunteering work in a charity shop and her hope to go to university in the autumn on a mental health nursing course, although with continuing problems of anxiety. She enclosed a number of medical letters. She attended another consultation, this time with a nurse, on 14 July 2015. No points-scoring descriptors were accepted at all. The overall impression of the report was that the claimant had made a lot of improvement and that, although she still had bad days, for the majority of the time she did not have any needs coming within such descriptors. On 22 July 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 22 June 2015 and an adoption of the nurse's opinion on the areas where the claimant had indicated needs.
The claimant put in a request for mandatory reconsideration with a letter dated 14 August 2015 from her GP saying that she was struggling with general anxiety disorder and evidence on 19 August 2015 of referral to Mindsmatter Preston for cognitive behavioural therapy. Reconsideration was refused and the claimant appealed, saying among other things that she was still suffering the same way as when she was awarded PIP initially. The Secretary of State's written submission simply supported the decision that the claimant was not entitled to PIP from 22 July 2015, as if it had been a decision on a new claim, without even referring to any particular descriptors or any specific evidence apart from the nurse's report of 14 July 2015, let alone any grounds of supersession. Section 1 of the document gave the date of claim as 13 June 2015. Although there was a reference to the previous award on the score of 14 points for daily living descriptors, there was no reference to the period covered by that award.
The claimant attended the tribunal hearing on 11 March 2016 on her own and gave reasonably detailed evidence. The tribunal disallowed the appeal. In what was no doubt a slip it stated in its decision notice that the Secretary of State's decision being confirmed was dated 27 July 2015 and that the claimant was not entitled to the daily living component or the mobility component of PIP (scoring no points) from that date. The statement of reasons used the date 27 May 2015 in two places, but I am satisfied that throughout the intention was to refer to 22 July 2015. Paragraph 6 of the statement of reasons recognised the existence of the initial award of PIP, stating the period it covered, but then talked about the completion of another claim form. The statement then went through the evidence and set out why, by reference the most recent PIP2 form and consultation report, plus the claimant's oral evidence and its evaluation of how effectively she had been able to communicate and engage with the tribunal at the hearing, it concluded that she did not score any points on any descriptors. The final paragraph of the statement was as follows:
``20. Unlike an award of Disability Living Allowance there is no requirement to identify a change of circumstances when reviewing an existing award of Personal Independence Payment and in view of the evidence before us we consider that the decision of the Secretary of State made on /07/2015 is correct.''
When giving the claimant permission to appeal after the oral hearing on 20 July 2016, Judge Wright said that it was arguable (a) that what the tribunal said in paragraph 20 of its statement of reasons about...
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