Sandhu v Secretary of State for Work and Pensions

An appellate court should not re-make a benefits decision where the tribunal’s factual findings are legally flawed and internally inconsistent. The proper course is to set aside the decision and remit the matter for a fresh determination.

The court declined to give wider guidance on the meaning of being unable, or virtually unable, to walk under section 73 of the Social Security Contributions and Benefit Act 1992. Existing Commissioner decisions, including R(M) 2/89 and CDLA/97/2001, were not obviously wrong or unintelligible and should continue to be applied.

The appellant suffered a serious leg injury in a road traffic accident and claimed the higher-rate mobility component of disability living allowance. The Secretary of State rejected the claim. The First-Tier Tribunal dismissed his appeal, accepting that he could not put weight on or stand on his right leg, but also finding that he could walk using crutches.

The Upper Tribunal upheld that decision, treating R(M) 2/89 as factually distinguishable because it concerned a person with one leg. The appellant appealed to the Court of Appeal on a point of law. The central issues were whether the tribunal’s findings were legally inconsistent and whether this court should re-make the decision or remit the case.

1. Appeal allowed. The Secretary of State conceded that the Upper Tribunal had erred in law by failing to recognise that the First-Tier Tribunal’s decision was vitiated by legal error.
2. The First-Tier Tribunal’s findings were patently irreconcilable. It accepted that the appellant could not put any weight or stand on his right leg, yet found that he could walk using crutches while standing first on that leg. The inconsistency meant that there were no clear factual findings on which the Court of Appeal could re-make the decision.
3. Section 14(2) of the Tribunals, Courts and Enforcement Act 2007 permitted the appellate court either to re-make the decision or remit it. Because the factual findings were flawed, remittal was the appropriate course. The case was remitted to the First-Tier Tribunal for a determination de novo.
4. The court declined to provide broader guidance on the statutory test of being unable, or virtually unable, to walk under section 73 of the Social Security Contributions and Benefit Act 1992. It considered the existing Commissioner decisions, including R(M) 2/89 and CDLA/97/2001, neither obviously wrong nor unintelligible. They should continue to be applied by decision-makers. A reconsideration should await clear and unassailable findings of fact supporting a different approach.

• Court of Appeal (Civil Division) [2010] EWCA Civ 962: allowed the appeal and remitted the matter to the First-Tier Tribunal for a determination de novo.
• Upper Tribunal Administrative Appeals Chamber: dismissed the appellant’s appeal from the First-Tier Tribunal, holding that no error of law had been demonstrated.
• First-Tier Tribunal: dismissed the appeal against the rejection of the disability living allowance claim.