Secretary of State for Work and Pensions v DB

On an appeal concerning entitlement to Personal Independence Payment, the First-tier Tribunal may refer the claimant for examination by an approved healthcare professional where the conditions in the procedural rules are met and the examination is necessary to provide information for determining the appeal. That power extends to issues concerning entitlement to the daily living or mobility component and the applicable rate.

A tribunal commits a material error of law where it wrongly concludes that it lacks that power and, had it understood the position, would have directed an examination. The appropriate course is to set aside its decision and remit the appeal for a fresh hearing before a differently constituted tribunal.

The claimant had moved from an award of Disability Living Allowance to an award of the standard rate of the daily living component of Personal Independence Payment. Following reconsideration, she was also awarded the standard rate of the mobility component. The First-tier Tribunal confirmed that revised decision.

The claimant's principal complaint was that her Personal Independence Payment claim had been decided without a face-to-face assessment, despite an earlier assessment for Disability Living Allowance and evidence of deterioration. The First-tier Tribunal considered that it could not itself direct a medical examination, although it would have wished to obtain one.

The Secretary of State accepted before the Upper Tribunal that this was an error of law. The central issue was whether the First-tier Tribunal had power to direct a face-to-face medical assessment in an appeal concerning Personal Independence Payment entitlement.

1. Appeal allowed. The First-tier Tribunal's decision was set aside and the appeal was remitted to a differently constituted First-tier Tribunal for a fresh oral hearing.

2. Section 20(2) of the Social Security Act 1998 permits the First-tier Tribunal, where prescribed procedural conditions are met, to refer a person to an approved healthcare professional for an examination and report where necessary to provide information for determining the appeal. A Personal Independence Payment is a relevant benefit for this purpose.

3. Schedule 2 to the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 includes questions whether a claimant meets the conditions for the daily living or mobility component of Personal Independence Payment and the rate payable. Accordingly, in an appeal concerning entitlement to Personal Independence Payment, the First-tier Tribunal has power to direct a medical examination by a healthcare professional.

4. The First-tier Tribunal had misunderstood that power. The error was material because the tribunal had made clear that, if it had understood it possessed the power, it would have directed an assessment. Its decision therefore could not stand.

5. The new tribunal must decide entitlement under the Personal Independence Payment criteria, rather than the former Disability Living Allowance criteria, by reference to the circumstances at the date of the decision under appeal. Later evidence may be relevant where it sheds light on those earlier circumstances. A local authority's treatment of a person as disabled does not itself establish entitlement to Personal Independence Payment, although care plans and assessments may assist as evidence of practical difficulties.

• Upper Tribunal (Administrative Appeals Chamber): allowed the Secretary of State's appeal, set aside the First-tier Tribunal decision and remitted the claimant's appeal for a fresh hearing before a differently constituted panel.
• First-tier Tribunal, Social Entitlement Chamber, Lincoln: on 11 August 2015, confirmed the revised award of the standard rates of the daily living and mobility components under the Personal Independence Payment scheme.