AH v Secretary of State for Work and Pensions (DLA)

On an appeal concerning renewal of disability living allowance, the decision-maker must provide all relevant or potentially relevant documents in its possession under rule 24(4)(b). Documents underlying an earlier award will ordinarily be relevant to a renewal appeal and cannot simply be offered if the tribunal asks for them.

A tribunal is not invariably required to adjourn for missing earlier-award material. It must, however, consider whether to obtain it, having regard to the available evidence, the basis of the former award, the possibility of a material difference, its duty to explain a different outcome, and the obligation to deal with the case fairly and justly.

The child claimant had previously received the lower mobility rate and middle care rate of disability living allowance. Her renewal claim was refused on 27 January 2015. The First-tier Tribunal dismissed her appeal on 16 July 2015, finding that she could generally manage her Type 1 diabetes without qualifying assistance, supervision or guidance.

The Secretary of State had told the tribunal that documents concerning the previous award were available, but had not supplied them. The appeal to the Upper Tribunal concerned the effect of that non-disclosure and whether the First-tier Tribunal should have considered obtaining the material before deciding the renewal appeal.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law. It was set aside and remitted for a complete rehearing before a differently constituted tribunal.

2. Rule 24 required the decision-maker to provide copies of all relevant documents in its possession. In this context, relevance may properly mean potential relevance, since the significance of evidence may emerge only after full consideration of the appeal. Where documents concerning an earlier award are relevant or potentially relevant, it is insufficient for the Secretary of State merely to say that they can be produced if requested. The rule imposes a mandatory disclosure duty.

3. The Upper Tribunal did not decide that earlier-award documents must be disclosed in every conceivable renewal case. Exceptionally, they might plainly lack relevance. Nor is a tribunal always obliged to adjourn when such documents have not been provided. It may safely proceed where it already understands the basis of the earlier award and has adequate evidence, or where the totality of the current evidence makes the result inevitable.

4. Nevertheless, tribunals should be cautious about proceeding without material that should have been produced. Earlier application forms and medical evidence may assist in assessing a claimed unchanged or increased level of disability. They may also enable the tribunal to explain why it has reached an outcome different from the prior award, as required by R(M) 1/96, unless the reason is obvious.

5. Here, the tribunal knew that the earlier material existed and was available, but did not acknowledge it or consider whether to call for it. There remained a possibility that it could materially affect the appeal. That omission was an error of law. The interpretation complaint was not made out, and it was unnecessary to determine a further suggested issue about the care-component test.

The rehearing tribunal was directed to obtain the earlier-award material, hold an oral hearing, and determine entitlement as at 27 January 2015. Later evidence may be used only if it relates to that time.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal decision for error of law, and remitted the case for rehearing.
• First-tier Tribunal: dismissed the appeal against refusal of renewal of disability living allowance on 16 July 2015 (reference SC304/15/0014).